The annotated constitution of the Australian Commonwealth

THE ANNOTATED CONSTITUTION

OF THE

AUSTRALIAN COMMONWEALTH.

N^

ANNOTATED CONSTITUTION

OF THE

AUSTRALIAN COMMONWEALTH

BY

(S^t) JOHN QUICK LL.D.

OF THE VICTORIAS BAB, ONE OF THE REPRESENTATIVES OF VICTORIA IX THE NATIONAL AUSTRALASIAS CONVENTION 1897-8

AND

ROBERT RANDOLPH GARRAN M.A.

OF THK NEW SOUTH WALES BAR, AUTHOR OF "'THE COMING COMMONWEALTH*

SYDNEY MELBOURNE

ANGUS & ROBERTSON MELVILLE & MULLEN

LONDON : THE AUSTRALIAN BOOK COMPANY

38 WEST SMITHFIELD E.C. 1901

SIDNEY

Websdale, Shoosmith & Co., Printers, 117 Clarence Street.

v^

TO

THE PEOPLE OF AUSTRALIA

THIS BOOK IS DEDICATKD BY THE AITHORS

Digitized by tine Internet Archive

in 2007 with funding from

IVIicrosoft Corporation

http://www.archive.org/details/annotatedconstitOOquicuoft

PEEFACE.

The preliminary part of this work is a historical introduc- tion and guide to the study of the Constitution of the Australian Commonwealth. This is followed by analytical, legal, and political commentaries on the Constitution, for the use of those who seek a special and comprehensive acquaintance with its provisions.

Our chief aim has been a practical one. Clear as is the language of the Constitution, it cannot be fully understood without the study of a large correlated literature.

The Federation of the Australian colonies has occupied the best energies of the statesmen and the people of Australia for many years ; and this Constitution is the outcome of exhaustive debates, heated controversies, and careful com- promises. It is an adaptation of the principles of British and colonial government to the federal system. Its language and ideas are drawn, partly from the model of all modern govern- ments, the British Constitution itself ; partly from the colonial Constitutions based on the British model ; partly from the Federal Constitution of the United States of America ; and partly from the semi-federal Constitution of the Dominion of Canada ; with such modifications as were suggested by the circumstances and needs of the Australian people.

The Constitution of the Commonwealth, therefore, is not an isolated document. It has been built on traditional foundations. Its roots penetrate deep into the past. It embodies the best achievements of political progress, and realizes the latest attainable ideals of liberty. It represents the aspirations of the Australian people in the direction of nationhood, so far as is consistent and in harmony with the solidarity of the Empire.

Such an instrument of government must needs be rich in historical associations, and many of its derivative enactments

PREFACE.

are necessarily intertwined with the course of constitutional development and interpretation in kindred systems and communities. There is hardly a phrase in it without a history, or without analogy with a phrase which in some other Constitution has been the subject of exhaustive arguments and judicial decisions. The Commentaries of the great American jurists, and the numerous judgments on constitutional questions given by the Supreme Court of the United States during the last century, are full of profound reasoning which is applicable to the words of this Constitution. Many decisions of the Supreme Courts of Canada and the Australian colonies upon constitutional questions, and reviews of them by the Privy Council, are of great value in the elucidation of the Constitution of the Commonwealth. There is thus an immense store of material for comparative study.

The actual history of the Constitution is traced generally in Part IV. of the Historical Introduction, and in detail in the Historical Notes appended to each clause, section, or sub- section. But its study involves many other aspects. Its character as a colonial Constitution demands a review of the history and principles of colonization, which are shortly dealt with in Parts I. and II. of the Historical Introduction. As an Australian Constitution, it is intimately associated with the story of the constitutional development of the Australian colonies, which is traced in Part III. of the Historical Introduction. As a Constitution on the British model, it requires some knowledge of British constitutional law and history, the outlines of which are sketched in the notes to the Preamble and elsewhere. And as a Federal Constitution, light is thrown upon it by the American, Canadian, Swiss, and German Constitutions. Wherever comparison was thought useful, the corresponding provisions of those Consti- tutions have been set out in small type immediately after each section.

We are fully sensible of the difficulty of attempting to expound a Constitution before it has been the subject of practical working or judicial exposition. It is impossible to foretell where the real difficulties will be found, or how they

PREFACE.

will be met. The experience of other countries is a guide, but not an infallible guide ; and the development of the Constitution of the Commonwealth must assuredly follow lines of its own. We have, however, endeavoured, from the vast and scattered materials bearing on the subject, to produce a work which we hope will facilitate the interpretation of, and foster an affection for, the Constitution. We trust that by the orderly arrangement of historical matter, by the minute and impartial analysis of every fundamental word, phrase, and enactment of the Constitution, and by the provision made for the comparative study of other Constitutions, with their wealth of associated precedents, the work may prove of assistance, not only to students of constitutional history and political science, but also to those who, in the active fields of law, politics, or commerce, have a practical interest in the working of the new federal institutions of Australia.

For valuable assistance to the study and exposition of the Constitution of the Commonwealth, we desire to express our acknowledgments and obligations to the following works : —

Sir Thos. Erskine May : ParliameHtary Practice.

Walter Bagebot : The English Constitution.

Dr. E. Heam : The Gotemment of England.

Professor E. Jenks : The Government of Victoria.

Professor A. V. Dice}' : The Law of the Constitution.

Sir Richard ChaflFey Baker, M.L.C. : Manual for the Use of the Convention of

1891 ; and Pamphlets. Kent's Commentaries on the Constitution oj the United States. Storey's Commentaries on the Constitution of the United States. George Bancroft : Formation of the Constitution of the United Stales. Dr. John W. Burgess : Political Science and Constitutional Law. A. J. Baker (Iowa) : Annotated Constitution of the United States. Dr. J. A. Poraeroy : Constitutional Law of the United States. Dr. H. Von Hoist : Constitutional Lata of the United States. John Fiske : The Critical Period of American History. Roger Foster : Commentaries on the Constitution of the United States. Dr. Thomas M. Cooley : Constitutional Limitations and Constitutional Laic oi

the United States. E. P. Prentice and J. G. Egan : Commerce Clause of the United States

Constitution. James Bryce : The American Commonwealth. Carl E, Boyd : Cases on American Constitutional Law. Alpheus Tofld : Parliamentary Government in the British Colonies. Goldwin Smith : Canada and the Canadian Question. Gerald John Wheeler : Confederation Law of Canada. A. H. F. Lefro}' : Legi.4ative Power in Canada.

PREFACE.

For information as to the progress of Federation and constitutional orovernment in South Australia we are indebted

o

to Sir Richard C. Baker, and for similar materials in the case of Tasmania to the Hon. Nicholas J. Brown, M.H.A. Professor Morris, of the University of Melbourne, kindly revised the sketch of ancient colonies and modern coloniza- tion down to Magellan's great voyage. We have to thank Mr. Francis Walsh, Parliamentary Librarian of New South Wales, Mr. R. Church, Parliamentary Librarian of Victoria, Mr. G. W. Waddell, Librarian of the Supreme Court of New South Wales, and Mr. John Schutt, Librarian of the Supreme Court of Victoria, for courteous facilities afforded and assist- ance given in referring to original reports and authorities.

J. Q. R. R. Gr. 7th Dec, 1900.

-^ I

TABLE OF CONTENTS.

PAGE.

PREFACE ^-ii.

TABLE OF IMPERIAL STATUTES CITED xiu.

TABLE OF CASES CITED xix.

HISTORICAL INTRODUCTION.

Part L— AXCIENT COLONIES

(1) Hellenic City SUtes 1

(2) Roman Colonise ... ... ... ... ... ... ... 4

Pakt II. -modern COLONIZATION

(1) In America, Africa and Asia ... ... ... ... ... ... 6

(2) In Australasia ... ... .. ... ... ... ... 23

Part III.— COLONIAL GOVERNMENT IN Ai;STRALlA

(1) New South Wales 35

(2) Victoria ... ... ... ... ... .. ... ... 51

(3) Tasmania ... ... ... ... ... 58

(4) South Australia ... . . ... ... 62

(5) Western Australia ... .. ... ... ... .. 67

(6) Queensland... ... ... ... ... ... 72

(7) New Zealand . . ... ... ... ... ... ... 75

Part IV.— THE FEDERAL MOVEMENT IN AUSTRALIA

(1) The Germ of Federation 79

(2) Earl Grejf^s Schemes 81

(3) The Constitutional Committees of 1853 90

(4) Australian Efforts, 1854-1863 92

(5) The Tariff Question, 1855-1880 100

(6) The Federal Council • 109

(7) The Commonwealth Bill of 1891 115

(8) The Fate of the Commonwealth Bill of 1891 143

(9j The Popular Movement ... ... ... ... ... ... ... ... 150

(10) Adelaide Session of the Convention, 1897 ... -■• .. 165

(11) Consideration by the Legislatures ... ... ... ... 182

(12) The Sydney Session of the Convention, 1897 ... ... ... 187

(13) The Melbourne Session of the Convention, 1 898 .. . ... ... 194

(14) The Referendum of 1898 206

(15) Events in New South Wales 213

TABLE OF CONTENTS.

(16) The Premiers' Conference, 1899

(17) Adoption of the Constitution, 1899

(18) Enactment of the Constitution, 1900

LIST OF MEMBERS OF CONVENTIONS. CONFERENCES, &c. COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT ..

COMMENTARIES ON THE CONSTITUTION

TITLE

PREAMBLE

COVERING CLAUSES

Chapter L-THE PARLIAMENT

Part I. — General

Part II. — The Senate

Part III. — The House of Representatives Part IV. —Both Houses of The Parliament Part V.— Powers of The Parliament

Chapter IL— THE EXECUTIVE GOVERNMENT

Chapter IIL— THE JUDICATURE

Chapter IV.— FINANCE AND TRADE ...

Chapter V.— THE STATES ...

Chapter VL— NEW STATES

Chaiter VII.— miscellaneous

CuAiTER VIIL— ALTERATION OF THE CONSTITUTION ALPHABETICAL SUBJECT INDEX

PAGE.

. 218 . 221

. 228

. 253 . 262

281 282

311

383 384 411 445 483 508 699 719 811 927 967 978 985

997

TABLE OF IMPERIAL STATUTES

CITED LN THIS WORK.

PAGE.

21 Hen. 111. (1236-7) Confirmation of Charters 383

3 Edw. I. (1272) First mention of Parliament 383

15 Eclw. II. (1322) First recognition of Parliament by Crown 302

4 Edw. 111.(1.330)0.14. Yearly Parliament 411

25 Edw. III. (1352) st. 5. c. 13. Coinage 573

36 Edw. III. (1362) c. 10. Yearly Parliament 411

4 Hen. IV. (1402) c. 1. Confirmation of Charters 303

7 Hen. IV. (1405) c. 15. Election of Knights of Shires 307

9 Hen. IV. (1407) Confirmation of Charters : Statute of Gloucester 307

1 Hen. V. (1413) c. 1. Parlianientarj- elections — residence 477

8 Hen. VI. (1429) c. 7. House of Commons (electors) 307

10 Hen. VI. (1432) c. 2. House of Commons (electors) 307

23 Hen. VI. (1444-5) c. 14, House of Commons (electors) 307

32 Hen. VIII. (1540) c. 16. Aliens 600

34 and 35 Hen. VIII. (1542-3) c. 4. Bankruptcy 586

35 Hen. VIII. (1543-4) c. 3. King's style 298

43 Eliz. (1601) c. 2. Poor relief 321

21 Ja. I. (1623) c. 3. Patent 596, 597

3 Cha. I. (1627) c. 1. Petition of Right 316,318

16 Cha. I. (1640) c. 1. Yearly Parliament 411

c. 10. Star Chamber ; Privy Council ... 318, 502, 751

12 Cha. II. (1660) Restoration Parliament 406

16 Cha. II. (1664) c. 1^ Triennial Parliaments ... 411

29 Cha. II. (1677) c. 3^ Statute of Frauds 322,558

31 Cha. II. (1679) c. 2. Habeas Corpus 318, 5<>2

1 Will, and Mary (1688) Convention declared a Parliament... ... ... ... 406

c. 21. Lords Commissioners of Great Seal ... ... 480

Sess. 2. c. 2. Bill of Rights 316,318,323

6 and 7 Will, and Mary (1694) c. 2. Parliament— Triennial Act ... 411, 462

7 and 8 Will III. (1696) c. 3. Treason 3-50

c. 15. Parliament— Demise of Crown ... ... ... 462

c. 22. Plantations— validity of laws ... ... 1, ^^7

c. 25. Infant: Parliament ... 476

12 and 13 WilL HI. (1700) c. 2. Act of Settlement 317, 318, 324, 478, 728, 731, 733

1 Anne (1702) c. 2. Demise of Crown 462

c. 8. Commissioners to negotiate union with Scotland ... 296

6 Anne (1707) c. 11. Union of England and Scotland 298

c. 41. Demise of Crown. Pension Place-holders 462, 493, 494

8 Anne (1709) c. 21. Copyright 593

10 Anne (17U)r,c. 31. House of Commons electors — clergj- ... ... ... 304

1 Geo. I. St. 2 (17U)j|c. 4. Naturalization ... 478

|,|c. 38. Parliament— Septennial Act 462

4 Geo. I. (17liVc. 11. Transportation to American Colonies 29

6 Geo. I. (171B1JC. 5. Dependency of Ireland on Great Britain ... 299

TABLE OF IMPERIAL STATUTES.

4 Geo. 8 Geo. 18 Geo. 1 Geo. 6 Geo. 6 Geo.

11 Geo.

13 Geo.

14 Geo.

II.

II.

II. III. III. III.

III. III. III.

18 Geo. III.

22 Geo.

23 Geo.

24 Geo. 27 Geo.

III.

III. III. III.

III. III. III.

31 Geo.

33 (Jeo.

37 (ieo.

39 and 40 Geo.

54 Geo. Ill,

59 Geo. Ill

1 and 2 Geo. IV

3 Geo.

4 Geo. 9 Geo.

10 Geo. 1 Will

IV. IV. IV.

IV. IV.

c. 21. c. 13. c. 18. c. 23. c. 12.

1731) 1735) 1745) 1760) 1765) 1766) c. 11.

c. 12.

c. 42.

c. 21.

c. 58.

c. 83.

c. 12.

1770) 1773) 1774)

1778)

1782)

British Subject ...

Copyright Engravings ...

House of Commons Electors — clergy ,

Commissions and salaries of Judges

Stamp Tax (America) ...

Repeal of Stamp Tax (America)

Declaratory of right to tax the colonies

Grenville Act ; Election Petitions

British Subject ...

Residence in constituency

Canada — Quebec Act

Colonial Charter— Declaration that Great

will not tax th(3 colonies ... Contractors : House of Commons

45. c. 53.

c. 75. Patent Offices in Colonies

1783) c. 28. Ireland

1784) c. 56. Transportation .. 1787) c. 2. New South Wales Foundation

c. 13. Consolidated Fund

c. 38. Designing and printing of linens

1791) c. 31. Canada Upper and Lower

1793) c. 13. Act of Parliament — Commencement .

1797) c. 97. Treaty with United States

III. (1800) c. 67. Union of Great Britain and Ireland

1813) c. 15. (Recovery of debts in N.S.W.)

1819) c. 12. " Sturges Bourne's Act "—Poor Rates

c. 114. Duties in New South Wales

(1821) c. 8. Duties in New South Wales

Repeal of Act for securing dependency of Ireland ... 299

730, 733 ... 299 29,35 ... 35 ... 812 593, 598 22, 310, 512 ... 331 ... 769 ... 299 ... 348 284 ... 36 ... 36 ... 36

PAGE.

478, 599 ... 593 ... 304 ... 728 ... 21 ... 22 ... 22 ... 496 478, 599 ... 477 ... 511 Britain

318, 348 ... 493

1822) c. 96. Duties in New South Wales

1823) c. 96. Justice in New South Wales and Van Diemen's Land 36, 59 1828) c. 61. Public Houses ... 281

c. 8.3. Government of New South Wales and Van Diemen's

Land 37,59,344,366,462,512,808

22. Western Australia - Foundation 33,68,512

1829) c. 1830-1)

Sand 4 Will. IV. (1833)

4. (Demise of Crown) c. 20. (Lower Canada— validity of laws) 2 and 3 Will. IV. (1832) c. 4.5. Reform Ast -England

Hou-so of Commons (offices)— Speaker Statute of Limitations

Judicial Committee 330,

Plantations— vali<lity of laws Bank of England : Bank Note South Australia— Foundation Recovery of Debts— Ireland

Oaths

Copyright (lectures) M u u ici pal Corporations Patents

c. 59. International Copyright

c. 60. South Au.stralia

c. 38. Election Petitions .

c. 67. Patents

4 and 5 Will

5 and 6 WiU

IV. IV.

(1834) (18,35)

c. 105. 0. 27. c. 41. 0. 59. c. 98. c. 95. 0. 55. c. 62. c. 66. c. 76. c. 83.

1 and 2 Vic. (1838)

2 and 3 Vic. (1839)

... 462 ... 348

298, 307, 308 ... 480 ... 462

730, 751, 766 ... 348 .. 575 63, 352, 374 ... 322 ... 348 ... 593 ... 475 ... 596 ... 593 ... 352 ... 496 ... 597

TABLE OF IMPERIAL STATUTES.

XV.

3 and 4 Vic.

(1840)

c. 9. c. 35. c. 62.

c. 105.

4 and 5 -Vic.

(1841)

c. 13.

5 and 6 Vic.

(1842)

c. 45. 0. 61. c. 76.

c. 100.

6 and 7 Vic.

(1843)

c. 34. c. 38. c. 73. c. 94.

7 and 8 Vic.

(1844)

c, 12, c. 66. c. 69. c. 74.

8 and 9 Vic.

(1845)

c. 20. c. 109.

9 and 10 Vic.

(1846)

0.77. c. 93. c. 103.

10 and 11 Vic.

(1847)

c. 95.

1 1 and 12 Vic.

(1848)

c. 12. c. 42.

12 and 13 Vic.

(1848-9) c 95.

c. 96.

13 and 14 Vic.

(1850)

c. 21. c. 59.

14 and 15 Vic.

(1851)

c. 83. c. 99. c. 100.

15 and 16 Vic.

(1852)

c. 12. c. 72. c. 83.

16 and 17 Vic.

(1853)

c. 48.

17 and 18 Vic.

(1854)

c. 31. c. 104. c. 125.

18 and 19 Vic.

(1855)

c. 54.

c. 55. c. 56.

c. 84.

20 and 21 Vic.

(1857)

c. 3.

21 and 22 Vic.

(1858)

c. 70.

22 and 23 Vic.

(1859)

c. 12.

23 and 24 Vic.

(1860)

c. 34. c. 122.

Publication of Parliamentary papers 503

Canada — Union of Upper and Lower 23,512

To Separate Islands (New Zealand) from New South

Wales 75, 344, 512

Recovery of Debts — Ireland ... ... ... ... 322

Loan to South Australia... ... ... ... ... 352

Copyright 301, 348, 349, 594, 595, 600, 602

South Australia : Crown Colony 64,352

New South Wales : Representative Legislature — Van

Diemen's Land, .38, 52. 53, 59, 60, 72, 74, 344,

375, 385, 512, 688, 689, 690, 691, 692, 694, 976 CopjTight of Designs ... ... ... ... ... 598

Fugitive Offenders 618,619

Judiciail Committee ... ... .. ... ... 330

Solicitors 809

Foreign Jurisdiction ... ... ... ... ... 618

Copyright— International ... ... ... 594, 770

Aliens and Naturalization ... ... 478, 600, 601

Judicial Committee 330, 741, 743

AssenttoBills— N.S.W. and V.D.L 690

Railway Clauses Consolidation 905, 90S, 910

Wagers ... ... ... ... ... ... ... 558

House of Commons (officers) ... 480

(Lord Campbell's Act — Death by Accident) 281

New Zealand Government .. ... ... 76

Copyright (colonial) 49,594

Treason — Felony ... ... .. ... ... ... 492

Justices of the Peace ... ... . ... •■• 618

Judgments — Ireland ... ... .. ... ... 322

Offences on the high seas ... ... 358

Abbreviation of language in Acts of Parliament ... 475 Australian Colonies Act (N.S. W., S.A , V.D.L., Vic,

W.A.), 40, 52, 53. 56, 60, 61, 64, 65, 68, 72, 74,

88, 90, 104, 344, .352, 385, 512, 690, 888, 976

Judicial Committee

Evidence

Criminal Procedure

Copyright (international)

New Zealand — Constitution

Patents

Coin, Colonies

Railway and Canal Traffic

Merchant Shipping

Common Law Procedure

330

348

808

59.3, 594

76

597

49

896, 906-10, 912 ...49,355, 359 781

New South Wales— Constitution, 44, 72, 463, 504,

512, 690, 889, 976 Victoria— Constitution 45, 46, 57, 463, 504, 512, 690, 704 Australia — Crown Lands Sale ... ... ... ■• 61

House of Commons (offices) —Deputy Speaker

Transportation : Cessation

Cop vright of Designs

Evidence ...

Petitions of Right

Homicide: Sea

4S0 61 598 3J8 805 49

xvi. TABLE OP IMPERIAL STATUTES.

24 and 25 Vic.

(1861; c. 44.

c. 134.

25 and 26 Vic.

(1862) c. 63.

c 89.

26 and 27 Vic.

, (1863) c. 24.

27 and 28 Vic.

(1864) c. 24.

28 and 29 Vic.

(1865) c. 14.

c. 63.

c. 64.

29 and 30 Vic.

(1866) c. 19.

c. 74.

30 and 31 Vic.

(1867) c. 3.

c. 45.

c. 102.

c. 124.

31 Vic.

(1868) c. 29.

31 and 32 Vic.

(1868) c. 72.

c. 105.

e. 125.

32 and 33 Vic.

(1869) c. 11.

c. 15.

c. 43.

c. 55.

c. 71.

33 and 34 Vic.

(1870) c. 10.

c. 14.

c. 23.

c. 52,

c. 91.

c. 102.

34 and 35 Vic.

(1871) c. 28.

35 and 36 Vic.

(1872) c. 19.

36 and 37 Vic.

(1873) c. 22.

c. 48.

c. 60.

c. 66.

c. 88.

38 and 39 Vic.

(1873) c. 38.

c. 51.

c. 53.

c. 77.

39 and 40 Vic.

(1876) c. 59.

c. 80.

40 and 41 Vic.

(1877) c. 47.

41 and 42 Vic.

(1878) c. 67.

c. 73.

42 and 43 Vic.

(1879) c. 75.

43 and 44 Vic.

(1880) c. 9.

South Australia and Queensland Boundaries

62, 374, 375, 976 Bankruptcy ... ... ... ... ... . 592

Merchant Shipping ... . ... ... 355,359

Companies 322, 591, 605

Vice-Admiralty Courts . 400,798

Naval Prize 797

Colonial Naval Defence ... ... ... ... 49, 695

Colonial Laws Validity ... 50, 229, 230, 232, 2.35, 236, 241, 245, 296, 318, 347-352, 364, 631, 650, 736

Marriage ... ... ... ... 50

Parliament — Oath ... ... ... ... ... 488

Reservation of Customs Bills ... ... ... ...40,59

British North America Act ... 23, 291, 294, 335, 347,

349, 509, 544, 705, 720, 798, 832 (&c., see Index)

Vice-Admiralty Courts Amendment ... ... 400,798

Demise of Crown — Representation of the People of

England 298,308,462,463

124. (Merchant Shipping) 358

(Medical Practitioners— Colonies) ... ... ... 350

Promissory Oaths... ... ... ... .. . 488

Hudson's Bay Company .. ... ... ... ... 350

Election Petitions ... 496

Merchant Shipping ... ... ... ... 50, 358

House of Commons — Pensions ... ... ... ... 493

Diplomatic Salaries ... ... ... ... ... 493

Municipal Corporation (Elections) 475

Bankruptcy ... .. ... 592

Coinage 573,575

Alien : British Subject and Naturalization ... 50, 478,

491, 600, 601, 603

Felony 492

Extradition 50, 635, 636, 770

Clerg3^ : House of Commons — Disabilities 304

Naturalization — Oaths ... ... ... ... 491

(British North America— Amending) ... 350, 514, 973

Pacific Islands 6.37

Australian Colonies Duties .50,

106, .393, 399, 691, 697-8

Regulation of Railways 896-7,910

Extradition 769

Judicature 769

Slave Tratle 797

Canada — Privileges 506

Pacific Islands 637

Canada : Copyright ... 595,694

(Judicature) 322

Appellate Jurisdiction 751

Merchant Shipping 50

South African Union 114

Foreign Jurisdiction 618

Territorial Waters Jurisdiction .359

Election Petitions... .. ... ... ... 496

Greenwich Time 332

TABLE OF IMPERIAL STATUTES.

44 and 45 Vic.

(1881) c. 3.

c. 58.

c. 68.

c. 69.

45 and 46 Vic.

(1882) c. 50.

c. 76.

46 and 47 Vic.

(1883) c. 51.

c. 52.

c. 57.

48 Vic.

(1884) c. 3.

48 and 49 Vic.

(1885) c. 23.

c. 60.

c. 63.

49 and 50 Vic.

(1886) c. 33.

c. 37.

50 and 51 Vic.

(1887) c. 70.

51 and 52 Vic.

(1888) c. 25.

c. 32.

c. 41.

c. 46.

c. 50.

.52 and 53 Vic.

(1889) c. 63.

53 and 54 Vic.

(1890) c. 9.

c. 26.

c. 27.

57 and 58 Vic.

(1894) c. 60.

58 and 59 Vic.

(1895) c. 34.

c. 44.

m and 64 Vic.

(1900) c. 12.

PAGE.

Judicial Committee 330,751

Army Act, 1881 51,117

House of Commons — Election Petitions ... ... 496

Fugitive OfiFenders 619,696

Municipal Corporations... ... ... ... . 476

Merchant Shipping 51,360

Corrupt and Illegal Practices Prevention ... ... 497

Bankruptcy .. 322,592

Patents, Designs, and Trade Marks .. ... 597, 598

Representation of the People ... ... ... 298, 308

Redistribution of Seats 298,308

Australasia— Federal Council .. 230, 263, 311, 345, 362,

363, 376-7, 570, 613, 614, 629

Patents ... ... ... ... ... ... 597

Copyright 594, 596

Patents, Designs, and Trade Marks ... ... ... 598

Judicial Committee ... ... ... ... 330, 751

Railway and Canal Traffic 745, 896-7, 906, 908-10

Imperial Defence — Australia ...

Local Government

Declaration : Oath

Patents, Designs, and Trade Marks

Acts of Parliament — Interpretation

117,562

475

488

598

.230, 322, .332, 352, 362, 475, 777, 792-3

51

71

400, 696, 797-9

Merchant Shipping

Western Australia : Constitution

Colonial Courts of Admiralty ...

Merchant Shipping ... 49,50,51,229,230,232,

301, 355, 357, 358, 3.59, 360, .362, 569, 651

Colonial Boundaries 263,311,378-9,640,975

Judicial Committee Amendment 244,751

Commonwealth of Australia Constitution 249, 262, 281

1^>

TABLE OF CASES

CITED IN THIS WORK.

Note ok American' Reports. — The first 90 volumes of the reports of the Supreme Court of the United States are cited by the names of the different reporters (Dallas, Cranch, Wheaton, Peters, Howard, Black, Wallace). From vol. 91 they are known as the United States Reports (cited thus : — " 176 U.S."). The early reports of the Federal Circuit Courts are cited by the names of the reporters, but since 1880 they are all contained in the Federal Reporter (cited "Fed. Rep.").

Selected cases from the American State Courts down to 1869 are collected in the "American Decisions" (100 vols.); from 1870 to 1887, in the "American Reports" (60 vols.); and from 1888 to the present time in the "American State Reports." Under the national reporter s\'stem, the decisions of the highest courts of the different States are now contained in the following group of reports : — Atlantic Reporter, North-eastern Reporter, North-western Reporter, Pacific Reporter, Southern Reporter, South-eastern Reporter, South-western Reporter.

FAGK.

Abercrombie v. Dupuis (jurisdiction — residence), 1 Cranch (U.S.) 343 ... ... 777

Ableman v. Booth (suits by and against United States), 21 How. (U.S.) 506 ... 773 Ackman r. Town of Moncton (provincial tax on federal employees), 24 N.

Bruns. 103 ... ... ... ... ... . ... ... ... ... 553, 554

Addington r. Cann (Crown, when bound by legislation), 3 Atk. 154 ... ... 322

Add vston Pipe and Steel Co. v. United States ( commerce —monopolies), 175

U.S. 211 538-9

Ah Toy V. Musgrove (see Chung Toy I'. Musgrove)

Albany Bridge Case (interstate rivers — federal control), 2 Wall. (U.S.) 403 ... 886

Allan, Exp. : ;e Victoria Steam Nav. Board, 7 V.L.R. 248 («cc Victoria Steam

Nav. Board, He)

Allan V. Pratt (Privy Council — special leave to appeal), 13 App. Ca. 780 ... 761 Allen V. Hanson (winding-up foreign companies), 16 Quebec L.R. 85 ; and 18

S.C.R. (Can.)667 591,606

Almy V. California (inter-state commerce — State tax on bills of lading), 24

How. (U.S.) 169 847

American Insurance Co. «'. Canter (territories — government), 1 Pet. (U.S.) 511 972

American Publishing Co. v. Fisher (trial by jury), 166 U.S. 464 . ... 810

Amory v. Amory (jurisdiction — citizens of different States), 95 U.S. 186 ... 777

Anderson, Re (habeas corpus — jurisdiction of Queen's Bench), 30 L.J.Q.B. 129 781

v. Dunn (legal tender— construction), 6 Wheat. (U.S.) 204 ... .. 575, 652

Antelope, The (jurisdiction — penal laws of States), 10 Wheat. (U.S.) 66 ... 778 Armour Packing Co. v. Snyder (police power -oleomargarine), 84 Fed. Rep.

136 851

Armstrong v. Carson (action on a judgment), 2 Dall. (U.S.) 302 . ... 963

Ash V. Abdy (construction— statute), 3 Swans. 664 ... ... 365

Ashbury v. Ellis (civil process — service) (1893), App. Cas. 339 ... 616

Ashby I'. White (franchise). Smith's L. Cas. Vol. I. 268 ... ... ... ... 471, 756

Asher r. Texas (State tax on inter-state commerce), 128 U.S. 129 847, 858

Attorney-General v. Bradlaugh (parliamentary oath), 14 Q.B.D. 667 488

V. Great Ea.stern Ry. Co. (marginal note'i, 11 Ch. D. 449 ... 282

V. Powis (preamble) 1 Kav 186 ; 2 Eq. R. 566 285

r. Sillem (creation of right of appeal), 10 H.L.C. 720 ... 746

r. Weymouth (title— statute), Ambl. 23 281

for Canada v. Attorney -General of Ontario (pardoning

power), 3 Ont. App. 6 ; 19 Ont. Rep. 6 390,702,930,983

Attomev-General for Canada v. Flint ( Vice-Admiralty Courts — power to vest

jurisdiction), 3 S.C. (Nov. Scot.) 453; 16 S.C.R. (Can.) 707 709, 803

TABLE OF CASES.

PAGE.

Attorney-General of New South Wales v. Rennie (payment of members)

(1896), App. Cas. 376 500

Attorney-General of Ontario v. Attorney-General of Canada (assignment for

creditors) (1894), App. Cas. 189 588,591

Attorney-General of Ontario v. Attorney-General for Canada (Liquor Prohi- bition) (1896), App. Cas. 348 513, 516, 547, 548

Attorney-General of Quebec v. Murray, 25 Lower Can. Jur. 208 .. 761

of Queensland v. Gibbon (non-attendance — parliament), 12

App. Cas. 442 442,482

Austin V. Boston Aldermen (statutes unconstitutional in part), 7 Wall. (U.S.)

694 796

Australian Smelting Co. v. Brit. Broken Hill Propr. Co. (appeal to Privy

Council), 23 V.1..R. 643, 20 A.L.T. 46 738

Ayers, i?e (jurisdiction — suit against State), 123 U.S. 443 ... ... ... 774

Baiz, ^e (jurisdiction-proof of), 135 U.S. 403 772

Baker v. City of Portland (Chinese labour- restrictive law) (U.S.), L.T. 18th

Oct., 1879, p. 403.- Todd, Gov. in Col. 2nd ed. p. 196 628

Baldwin j?. Bank of Newbury (State insolvency laws), 1 Wall. (U.S.) 234 ... 587

V. Franks (statute unconstitutional in part), 120 U.S. 678 ... ... 796

V. Hale (bankruptcy, discharge by State law), 1 Wall. (U.S.) 223 587

Bank of Australasia v. Nias (civil process— service), 16 Q.B. 717 ... ... 616

of Toronto v. Lambe (federal corporations — taxation), 12 App. Cas. 575

547, 553, 554

of United States v. Devaux (jurisdiction— corporation - not a citizen), 5

Cranch. (U.S.)61 777

Banks r. Orrell (civil process — service), 4 V.L.R. (L.) 219 ... ... ... 614

Banks, The v. Mayor (federal certificates to creditors subject to State taxation),

7 Wall. (U.S.) 16 949

Bank Tax Case (federal stock exempt from State taxation), 2 Wall. (U.S.) 200 559, 949

Barbier v. Connolly (State regulation of laundries) 113 U.S. 27 .. ... 853

Barney v. Baltimore (jurisdiction — resident ot territory), 6 Wall. (U.S.) 280 777

V. McCreery (qualification of members — laws), CI. and Hall (U.S.) 176 440, 475

Barque (/7iw.sa7i, The (commerce -navigation), 2 Story (U.S.) 455 ... ... 540

BaiTon r. Baltimore (trial by jury), 7 Pet. (U.S.) 243 808

r. Burnside (corporations— conditions of doing business), 121 U.S. 186

Barrow V. Wadkin (alien), 24 Beav. 1 ... ... ... ... ... 600

— r. Wadkin (statute — punctuation), 24 Beav. 327 282

Barry, Re (federal jurisdiction— common law offences), 136 U.S. 597 787, 788

Bartemeyer v. Iowa (police power— breweries). 14 Wall. (U.S.) 26 853

Barton v. Taylor (parliamentary privilege), 1 1 App. Cas. 197 504

Bauman ». Ross (just compensation), 167 U.S. 548 641

Baxendale r. ilastern Counties R. Co. (reasonable rate — common law), 27

L.J.C.P. 1.37 ... 916

V. Great Western R. Co. (delivery charges — undue preference), 28

L.J.C.P. 69 ... .. .. ^ .„ ... ... 908

Great Western R. Co. (delivery charges - undue preference), 28

L.J.C.P. 81 908

Beadell v. Eastern Counties R. Co. (railway cab-stand— undue preference), 26

L.J.C.P. 2.50 „ ... ... 907

Beadon r. King (construction-statute), 22 L.J. Ch. Ill 365

Beal r. Ford (residence), 3 C. P. D. 78 776

lieflard, /fc (precedence of .Judges), 7 Moo. P. C. 23 ... 727

lieers v. Arkansas (jurisdiction— suit against State), 20 How. (U.S.) 527 ... 774

Belanger v. Caron (plea of unconstitutionality), 5 Quebec L.R. 25 693

Bell ?•. Holtby (construction -statute), L.R. 15 Eq. 178 364

Bell Telephone Co., /^e (patent— tribunal), 7 Ont. Reps. 605 598

Bentley r. Rotherhani Local Hoard (title -statute), 4 Ch. 1). 588 281

Beresford-Hope r. Lady Sandhurst (election— women), 23 Q.B.D. 79 475

Bethell t>. Hihlvard (marriage -domicile), 38 Ch. D. 220 608

Bingham »;. CatKit (jurisdiction— residence of parties), 3 Dall. (U.S.) 382 ... 777

Hirtwhistle r. Vardill (marriage— domicile— title of statute), 7 CI. and Fin. 895 281 Blake p. McClung (corfMiration not citizen), 172 U.S. 239 .. .. ... 777,961

f- -Midland Ry. Co. (title— statute), 18 Q.B. 93 ... ... '.. ... 281

Blanchard v. Sprague (patent terms and conditions), 2 Story (U.S.) 164 ... 597

Bledsoe's Cawj (resignation of Senators), CI. and Hall (U.S.) 869 442

Boom Co. f. Patterson (resumption -compensation -jurisdiction), 98 U.S. 403 785

Borgmeyer V. Idler (construction of treaty), 159 U.S. 408 770

TABLE OF CASES.

PAGE.

Bowman v. Chicago, &c., R. Co. (police power— inter-state free trade). 125

U.S. 465 518, 528, 536, 537, 848, 851, 856

V. Farnell, 7 N.S.W. L.R. I (see Famell v. Bowman)

Boyer, ^xjff. (artificial stream — federal control), 109 U.S. 629 .. ... .. 883

Boynton v. Blaine, 139 U.S. 306 (see U.S. ex rel. Boynton v. Blaine)

Bradfield r. Roberts (establishment of religion), 175 U.S. 291 ... ... ... 953

Brashear r. Mason (mandamus to federal officer), 6 How. (U.S.) 92 ... 782

BreuU, Exp., re Bowie (residence -defined), 16 Ch. D. 484 960

Bridge Co. v. United States (federal control of bridges), 105 U.S. 470 ...517, 641, 884, 970 Brig Wilson, The v. United States (commerce includes conveyance), 1 Brock.

(U.S.) 423 515,540,873

Brimmer v. Rebman (commerce — State cannot prohibit importation), 138 U.S.

78 851,853,944

Briscoe v. Bank of Kentucky (legal tender — construction), 11 Pet. (U.S.) 257 575 Briton Medical Life Ass., lie (federal power foreign insurance), 12 Ont.

Reps. 441 592, 606

Broder v. Water Co. (riparian rights —reasonable use). 101 U.S. 274 ... ... 890

Broderick's Executor v. Magraw (legal tender), 8 Wall. (U.S.) 639 575

Brook, i?e (service of civil process), 33 L.J. C. P. 246 .. ... ... ... 614

17. Brook (marriage—deceased wife's sister), 9 H.L. Cas. 193 ... ... 609

Brown v. Houston (State tax on exports), 114 U.S 622 ... 845, 846, 848, 855, 856, 943

V. Maryland (State tax on imports), 12 Wheat. (U.S.) 419

286, 515, 520, 524-5. 527, 528, 537. 539, 846, 943-4, 959 Brownsville Commissioners v. League (mandamus to federal officer), 129 U.S.

493 782

Bryant v. Reading (appeal — "final and conclusive "), 17 Q.B.D. 128 746

Buchanan v. Rucker (civil process — ser\nce), 9 East 192 ... ... ... ... 616

Buckley v. Edwards (appointment of Judges) (1892), App. Ca. 387 727, 729

Buffington v. Day, 11 Wall. (U.S.) 113 (see Collector v. Day).

Burdett v. Abbot (Parliamentary privilege —contempt), 5 Dow 165 ; 14 East 1 502

Buron i>. Denman (Act of State), 2 Exch. 167 709

Burrow-Giles Litho. Co. v. Sarony (copyright in works of art). 111 U.S. 53 ... 596

Caird r. Sime (copyright), 12 App. Cas. 326 593

Caldwell t'. Van Vlissengen (patents), 21 L.J. Ch. 97 597

Caledonian R. Co. v. North British R. Co. (construction — statute), 6 App.

Cas. 114 365

Calhoun v. Lanaux (federal jurisdiction — how far exclusive), 127 U.S. 6.34 ... 803 California v. Central Pacific R. Co. (Federal power to construct railways —

State tax on federal franchise), 127 U.S. 1 516, 518, 520", 541, 552, 847

Californian Fig Syrup Co. 's trade mark (1888), 40 Ch. D. 620 599

CaUender, Sykes and Co. v. Colonial Sec. of Lagos (application of English

bankruptcy law) (1891), App. Ca 460 592

Calvin's Case (natural-born subject), 7 Coke's Reps 1 ... 478,599

Canada Sugar Refinery Co. v. The Queen (importation — when complete)

(1898), App. Ca. 735 859

Canadian Pacific Nav. Co. v. Vancouver City (quarantine), 2 Brit. Colu. Rep.

193 568

Cannon v. New Orleans (wharfage charge— State law), 20 Wall. (U.S.) 577 .. 5.36, 858

Capital Traction Co. y. Hof (trial by jury), 174 U.S. 1 810

Cardwell i'. Bridge Co. (navigable river— bridge), 113 U.S. 205 858, 885

Carew, Exp. (leave to appeal— criminal case) (1897), App. Ca. 719 752

Carnatica (Nabob of) v. East India Co. (judicial and political powers), 1 Ves.

J. 371; 2 »d. 56 723

Cameali7.Banks(jurisdiction—citizensof different States), 10 Wheat. (U.S.) 181 777 Carpenter v. Pennsylvania (pardoning power — Federal bankruptcy laws —

Constitution— construction), 17 How. (U.S.) 456 - 587

Carpenters' Co. v. Hay ward (questions of fact and law), 1 Dougl. 374 744

Carter v. Molson (Privy Council— special leave to appeal), 8 App. Ca. 530 .. 761

Carter Medicine Co. 's Trade Mark (1892), 3 Ch. 472 599

Cartledge v. Cartledge (custody of children), 31 L.J. Mat. 85 611

Chavasse, ^a: par^e, re Grazebrook (proclamation), 34 L.J. Bky. 17 331

Cherokee Nation v. Southern Kansas R. Co. (railway construction — federal

authority— compensation), 135 U.S. 641 .. .. 520, 541, 641, 874, 921 Chicago and Alton R. Co. v. Wiggrins Ferry Co. (judicial notice of State laws),

119 U.S. 615 ... .. 746

Chicago and Grand Trunk R. Co. v. Wellman (validity of statute— friendly

suit), 143 U.S. 339 767

TABLE OF CASES.

PAGK.

Chicago Burlington, &c., R. Co. v. Iowa (railroads— State regulation), 94

U S 155 ••• •■■ ••• ••• •• ••• ••• ■•• ^^"^

Chinese (American) Exclusion Case, 130 U.S. 581 .. ... 628,769

Chinese (Brit. Columbia) Tax Case, Todd Pari Gov. Col. 2nd ed. pp. 194 and 557 62/

Chisholm v. Georgia (jurisdiction -suits against States), 2 Dall. (U.S.) 419

286, 336, 774, 806

Christmas v. Russell (State judgments conclusive), 5 Wall. (U.S.) 290 963

Christy, Exp. (prohibition to inferior court), 3 How. (U.S.) 292 783

Chunc Toy v. Muserove (aliens— exclusion), 14 V.L.R. 349; (1891) App.

(fas. 272 . 390, 391, 600, 624, b26, 708, 710

Church of the Holy Trinity v. United States (Sunday— Christian religion),

143 U.S. 457 ... ••• 289,290,952

Chy Lung v. Freeman (State tax on foreign passengers), 92 U.S. 275 623, 855

Cincinnati, &c., R. Co. v. Inter-state C.C. (objects of Inter-state Commerce

Act — commission an executive body), 162 U.S. 184 ... 898, 900, 911, 915

Cissel V. McDonald (inhabitant of federal territory— status), 16 Blatch. (U.S.)

150 659

Citizens' Ins. Compy. v. Parsons (insurance contracts— provincial law),

7 App. Cas. 96 544,547,583,585

Civil Rights Cases (judicial power— to declare laws invalid), 109 U.S. 3 ... 792

Claflin v. Houseman (federal jurisdiction— how far exclusive), 93 U.S. 130 ... . 803

Clark V. Barnard (jurisdiction — suit against State), 108 U.S. 436 ... ... 774

Clarke and the Union Fire Ins. Co., Jie (winding-up— federal control), 14 Ont.

Reps. 618 591

Clarke's Design, ^e (trade marks) (1896), 2 Ch. 38 598

Clarke, ii/a; 7>ar<e (unconstitutional law — Aa6fias), 100 U.S. 399 .. ... ... 470

Clarkson v. Ontai'io Bank (assignment for creditors), 15 Ont. App. Reps. 166 591

Claydon v. Green (marginal note), L.R. 3 C.P. 511 ... ... 281

Clayton v. Utah (federal territories— operation of laws), 132 U.S. 632 972

Clegg V. Grand Trunk R. Co. (federal corporations— powers), 10 Ont. Reps.

708 ... 579

Clinton Bridge (the federal control of bridges), 10 Wall. (U.S.) 454 ... 517, 858, 884 Clough V. Curtis (territorial courts— constitutionality), 134 U.S. 361 ... ... 382

Clyde Nav. Trustees v. Adamson (Crown property exempt from taxation),

4McQ. H.L. 931 322

Clyde Nav. Trustees v. Laird (statute — construction), 8 App. Cas. 658 .. 365

Coal Co. V, Blatchford (jurisdiction — citizens of different States), 11 Wall.

(U.S.) 172 777

Coe V. Errol (commerce— when it begins), 116 U.S. 517 519, 539, 846, 904

Cohens v. Virginia (jurisdiction— suits against States — "arising under the

Constitution"), 6 Wheat. (U.S.) 264 429,575,658,773,790,806

Cole r. Cunningham (State records— faith and credit), 133 U.S. 107 962,963

Collector V. Day (federal tax on salary of State officer), 11 Wall. (U.S.) 113

551 555 734 950 Collett V. Collett (naturalization— State law), 2 Dall. (U.S.) 294 ... ' ... ' '601

Collingwood r. Pace (natural-born subject), 1 Vent. 413 478

Collins V. New Hampshire (police power— prohibition of sale), 171 U.S. 30 ... 851

V. Welch (construction— statute), 5 C.P.D. 27 364

Collins Co. V. Brown (alien— trade marks), 3 Jur. (N.S.) 929 J 600

I'. Reeves (alien— trademarks), 4 Jur. (N.S.) 865 600

Colorado Central Mining Co. v. Turck (original jurisdiction), 150 U.S. 138 ... 785

Colson r. I^ewis (jurisdiction— grants of different States), 2 Wheat. (U.S.) 377 801

Commercial Bank of India, Re (British corporation — winding-up in colony),

L.R. eEq. 517 .. ... .. 605

Commercial Bank of South Australia, Re (winding-up), 33 Ch. D. 174 ... 606

Commonwealth r. Smith (validity of law), 4 Binney (Penns.) 123 796

Connell v. Neill and Co (service 'out of jurisdiction— British subject), 7 W.N.

(N.S.W.)6 •" 615

Conner V. Elliott (federal privileges and immunities), 18 How. (U.S.) 691 ... 960

Cook V. Peimsylvania (inter-state commerce— State tax on auctioneers), 97

U.S. 5(56 847,857

Cooley r. Port Wardens (pilots— state control), 12 How. (U.S.) 299

^ , 515, 516, 523, 629-30, 540, 657, 853, 858, 873

Coomlxir r. Berks Justices (title— statute), 9 Q.B.D. 17 281

Copeman r. (;allant (preamble), 1 P. Wms. 317 285

Corfield v. Coryell (commerce defined— incidents), 4 Wash. (U.S. ) C.C. 371 516, 616, 959 Corson r. Maryland (interstate commerce- State licenses), 120 U.S. 502 ... 847

TABLE OF CASES.

CotS V. Watson (provincial tax on assets in insolTency), 3 Quebec L. Reps.

157 ; 2 Cartwright .343 553

Covington and Cincinnati Bridge Co. v. Kentucky (inter-stat« railway rates),

154 U.S. 204 521

Cowan V. Milbourn (Christian religion), L.R. 2 Ex. 234 951

Cox, Exp. (mandamus to officer of Crown), 14S.C.R. (N.S.W.) 287 782

Crandall v. Nevada (State tax on passengers), 6 Wall. (U.S.) 35 ... 529, 958, 959

Craufurd r. Att. -Gen. (Crown — bankruptcy), 7 Price 2 ... ... ... ... 321

Crutcher v. Kentucky (foreign express companv — State licence), 141 U.S. 47 847

Cucktield Burial Board, Jte (Crown— when bound), 24 L.J. Ch. 585 321

Gushing i*. Dupuy (federal insolvency law— appeal to Pri\'y Council — *' final "),

5 App. Cas. 409 588, 589, 746, 747, 760, 761

Cuvillier »'. Aylwin (prerogative of appeal), 2 Knap 72 ... .. 746,761

Daniel Ball, The (inter-state commerce —beginning and duration — navigable

waters), 10 Wall. (U.S.) 557 515,517,519,882

D'Arcy r. Ketchum (State judgment — when conclusive), 11 How. (U.S.) 165 963

Davis V. Beason \biganiy and polygamy), 133 (U.S.) .3.33 939, 953

V. Packard (ambassadors — " matters affecting'"'), 7 Pet. 275 ... ... 771

r. Regina (appeal from State courts to Pri\-y Council), 1 Vic. R. Eq. 33 738

Dean v. Dawson (appeal from State comls to Privv Council), 9 N.S.W. L.R.

Eq. 27 .' 738

Debs, Ee (enforcement of executive power by injunction), 158 U.S. 564 ... 965

Decatur v. Paulding (mandamus to federal officer), 14 Pet. 497 782

Deeming, jLxp. (leave to appeal— criminal case) (1892) App. Ca. 422 752

De Geer v. Stone (natural-born subject), 22 Ch. D. 243 .. 478

Delahoyd, Se (process civil, defined), 11 Ir. Ch. R. 404 616

Delondre r. Shaw (copyright - foreigner), 2 Sim. 237 594

Denaby Main CoUiervCo. v. Manchester R. Co. (group rates — equality clause —

undue preference), 13 Q.B.D. 674; 147rf. 209 ; 11 App. Ca. 97 "74.5, 906, 908-9, 921 Denton v. Manners (common law— when altered bv statute), 27 L. J. Ch. 199,

623 .: .365

Devine v. HoUoway (Cro\vn— demise j, 9 Week. Rep. 642 462, 463

Dewhurst v. Coulthard (judiciary— extra-judicial opinions), 3 Dall. (U.S.) 409 766

DiU, Ke (parliamentary pri\'ilege), 1 W. and W. (L.) (Vic.) 171 505

V. Murphv (parliamentary privilege), 1 W. and W. (L.) (Vic.) 342; 1

Moo. P.C. (N.S.)487 505

Dillett, Be (leave to appeal -criminal case), 12 App. Ca. 4.59 752

Dobbins v. Erie County (State tax on federal employee), 16 Pet. (U.S.) 435

551 552 553 554 949 Doe d. Bywater r. Brandling (preamble), 6 L..J. (O.S.) K.B 162 ... ' ... ' ' 285

Duroure r. .Jones (natural-born subject), 4 Term Rep. 300 478

Doggett v. Railroad Co. (federal corporation— sinking fund), 99 U.S. 700 ... 382

Doherty r AUman (judicial discretion), 3 App. Ca 728 759

Donald v. Scott (imported and domestic liquor - discrimination), 67 Fed. Rep.

(U.S.) 854; 165 U.S. 58 947

Donaldson 1-. Beckett (copyright), 4 Burr. 2408 593

Dooley r. Smith (legal tender), 13 Wall. (U.S.) 604 575

Dover r. Maestaer (prerogative of pardon), 5 Esp. 92 . ... 630

Downham v. Alexandria Council (State tax on business). 10 WalL (U.S.) 173 856

Doyle V. Continental Insurance Co. (insurance), 94 U S. .535 583

f. Falconer (parliamentary pri\nlege), L.R. 1 P.C 328 504

Dred Scott v. Sandford (citizenship jurisdiction), 19 How. (U.S.) 393

286, 470, 602, 784, 956 Dubuque, &c., R. Co. v. Richmond, 19 Wall. (U.S.) 584 (see Railroad Co. v.

Richmond)

Ducat V. Chicago (corporations -inter-state rights), 10 Wall. (U.S.) 410 ... 961

Duncan v. Darst (State insolvency law— discharge), 1 How. (U.S.) 301 .. 587

Durousseau v. United States (federal jurisdiction), 6 Cranch (U.S.) 307 ... 738

Dynes r Hoover (naval and military law). 20 How. (US.) 65 564

Eastern Counties Ry. Co. r. Marriage (heading— statute), 9 H.L. Cas. 32 ... 281 Edwards' Case (resignation of members —notice to State Governor), CI. and

Hall>U.S.)92 437

Edye v. Robertson, 112 U.S. 580 (•see Head Monev Cases)

Eilenbecker v. District Court (trial by jury), 134 U.S. 31 808

Eldridge v. Trezevant (federal control of navigable waters). 160 U S. 452 ... 883

Electors v. Bailey (inhabitant -definition), CI. and Hall (U.S.) 411 477

AVtza A'et^A, The (navigation and shipping), 3 Queb. L.R. 143 874

TABLE OF CASES.

PAGE.

Elkanv. Do La Juvenay (extra-territorial service), 22 A. L.T. 34 ... ... 615

Ellis V. McHenry (bankruptcy- international), L.R. 6 C.P. 228 592

Elphinstone v. Bedreechund (treaty — municipal rights), 1 Knapp 316 ... ... 769

Emanuel v. Constable (preamble), 3 Russ. 4^36 ... ... ... ... ... 285

Embrey v. Owen (riparian rights — reasonable use), 6 Exch. 353... ... ... 892

Emert V. Missouri (State tax on sales), 156 U.S. 296 ... ... ... ... 848

Ervine's Appeal (legislative power), 11 Penn. St. 256 ; 55 Amer. Dec. 499 ... 721 Escanaba Co. v. Chicago (commerce —river wholly within a State — federal

control— bridges), 107 U.S. 678 531,534,852,883

Evans t?. Eaton (copyright), 3 Wheat. (U.S.) 454 597

V. Hiidon (Provincial tax on salary of federal employee), 22 Lower Can.

Jur. 268 ; 2 Cartwright 346 553

Evershed v. London and N.W.R. Co. (competitive rates — gratuitous cartage —

undue preference), 2 Q.B.D. 254, 3 id. 134, 3 App. Ca. 1029 906, 908

Exchange, The v. McFaddon (federal power to exclude aliens), 7 Cranch (U.S.)

116 564,628

Exchange Bank of Canada v. Regina (Crown — priority of creditors), 11 App.

Cas. 157 322

Falkland Islands Co. v. Regina (prerogative of appeal), 1 Moo. P.C.N. S. 299 750

i''a»ia. The (operation of treaty), 5 Rob. Adm. 106 ... ... ... ... 769

Fargo V. Michigan (inter-state commerce defined— State tax), 121 U.S. 230 ... 517, 847 Farnell v. Bowman (liability of Crown for tort), 7 N.S.W.L.R. 1 ; 12 App. Ca.

643 805

Fenton v. Hampton (parliamentary privilege), 11 Moo. P.C. 347 ... ... 604

V. Livingstone (marriage — lex loci contractus) 3 McQ. H. L. 497 ... 609

Fertilizing Co. v. Hyde Park (police powers— noxious trades), 97 U.S. 659 ... 853

Ficklen v. Shelby Taxing District (State tax on business), 145 U.S. 1 849

Firebrace ?;. Firebrace (divorce— jurisdiction), 47 L.J. Prob. 41 ... 611

Fletcher 17. Peck (validity of laws), 6 Cranch 87 796

V. Rhode Island, 5 How. (U.S.) (see License Cases)

FongYue Ting t'. United States (treaty), 149 U.S. 698 769

Ford V. London and S.W.R. Co. (special rates to carriers — undue preference),

60 L.J.Q.B. 130 906

Forsyth v. United States (government of territories), 9 How. (U.S.) 571 ... 972

Foster v. Davenport (commercial marine — federal control), 22 How. (U.S.) 244 542

V. Kansas (police power— breweries), 112 U.S. 201 853

V. Neilson (treaty-law of the land), 2 Pet. (U.S.) 253 769

V. Port Wardens (survey of trading vessels— State law), 94 U.S. 246 ... 943

Fowler v. Lindsey (controversies between States), 3 Dall. 411 774

Fox V. Ohio (currency law — offences), 5 How. (U.S.) 410 573

Franconia, The : Reg. v. Keyn, 45 L.J.M.C. 17 ; 2 Exch. D. 63 (see Regina v.

Keyn) Fredericton, City of v. The Queen (Provincial control over liquor traffic), 19

N. Bmns, (3 Pugs, and Burb.) 139 ; 3 S.C.R. (Can.) 505 349, 543, 545

Freight Tax Case (see State Freight Tax Case)

Freme w. Clement (construction -statute), 44 L.T. 399 365

Garden Gully, &c., Co. v. McLister (appeal from State courts to Privy

Council), 1 App. Ca. 39 738

Garland, Ex parte (oath— religion— State laws), 4 Wall. (U.S.) 333 ... 953

Gamett, /^e (extent of maritime pc>wer), 141 U.S. 1 874

Gartoii V. Bristol, &c., R. Co. (facility to carrier— undue preference), 28

L.J.C.P. 306 _ .. ... 908

Garton v. Great Western R. Co. (delivery charges - undue preference), 28

L.J.C.P. 158 908

Gas«ios v. Ballon (alien— naturalized— status), 6 Pet. (U.S.) 761 602

Geddes, Exp., Re Mowat (sequestration— relation back), 1 Glyn and J. 414 ... 692

Goer V. Connecticut (commorce— game laws), 161 U.S. 519 854

Oenevtee Chief, The, v. Fitzhugh (admiralty jurisdiction), 12 How. (U.S.) 443 800

(Georgia r. Stanton (judicial power— political question), 6 Wall. (U.S.) 50 ... 723 Gibbons r. Ogdon (commerce defined ; Constitution— construction), 9 Wheat.

(U.S.) 1 515, 516, 521-4, 525, 628, 536, 538, 578, 657, 796, 796, 904

Gibson, Exp. (mandamus tfj officer of Crown), 2 N.S.W. L.R. 202 782

— r. United States (federal control of navigable watei-s), 166 U.S. 269 ... 883

Oilman v. Lockwofxl (bankruptcy— discharge by State laws), 4 Wall. (U.S. ) 409 687 — — - V. Philadelphia (commerce-bridge), 3 Wall. (U.S.) 713... 631-2, 540, 852, 858 Gleich, i?e (N./.) (extra-territorial jurisdiction), Todd, Pari. Gov. Col. 2nd

''^- 303 618, 619, 630

TABLE OF CASES.

Gloucester Ferry Co. v. Pennsylvania (State tax on inter-state ferry company),

114 U.S. 196 515, 534-6, 846, 852, 853, 855, 873, 885

Goodwin v. Caraleigh Phosphate and Fertilizer Works (inspection laws), 119

X. Carolina (U.S.) 120 _ 944

Gordon, £xp. (prohibition to inferior court), 1 Black (U.S.) 503 783

Gorely, Exp., re Barker (preamble to section), 34 L.J. (B.) 1 ... . 285

Gosse't V. Howard (Parliamentary privilege — contempt), 10 Q.B. 359 502

Gov. -Gen. of Dominion v. Four Pro^^nces (Canadian Liquor License Acts- validity), Wheeler, C.C. 144 ... ... ... 547

Graham, Exp. (prohibition to inferior court). 10 Wall. (U.S ) 541 783

Grand Junction R. Co., Re (incorporation of companies), 45 Upper Can.

Q.B. 302 579

Great Western R. Co, v. Sutton (special rates to carriers— undue preference),

L.R. 4HL. 226 906

Green, i?e (mandamus to federal officers), 141 U.S. 325 • 778

1-. Regina (common law— when altered by statute), 1 App. Cas. 513 365

V. Van Buskirk (State judgment— faith and credit), 7 V> all. (U.S.) 139 963

Green Bay and Mississippi Co. v. Patten Paper Co. (federal control of navigable

waters), 172 U.S. 58, 173 U.S. 179 ... ... 884

Grimes v. Eddy (police power— exclusion of infected cattle), 126 Missouri 168 851 Guckenheimer'r. Sellers (State tax on imports — original package), 81 Fed.

Rep. (U.S.) 997 846

Gulf, Colorado, and Santa Fe R. Co. v. Hefley (inconsistency of laws), 158

U.S. 98 939

Guyr. Baltimore (wharfage — inter-state free trade), 100 US. 434 532, 857

Habeas Corpus Cases, 100 U.S. 371 {see Siebold, Exp.)

Haggin V. Comptoir D'Escompte de Paris (foreign corporation), 23 Q.B.D. 519 605

Hall V. London Brighton, &c., R. Co. (railway rates), 15 Q.B.D. 505 905

Halton r. Cove (preamble), 1 B. and Ad. 538 284

Hamilton r. Vicksburg, &;c., R. Co. (bridge— na\ngation), 119 U.S. 280 ^.. 858, 885

Hammersmith and City R. Co. v. Brand (heading — statute), L.R. 4 H.L. 171 281

Hampton v. McConner( faith and credit), 3 Wheat. (U.S.) 234 963

Hanley I?. Donoghue (faith and credit), 116 U.S. 1 ... . ... ... 962

Hans V. Louisiana (jurisdiction — suit against State), 134 U.S. 1 774

Harding r. WilUams (preamble), 14 Ch. D. 197 285

Harman r. Chicago (inter-state commerce— State licence), 147 U.S. 396 847, 849, 852 Harris v. Cockermouth, &c., R. Co. (competition — undue preference), 27 L.J.

C.P. 162 907

Harris f. Hardeman (State judgment — faith and credit), 14 How. (U.S.) 334 963

Harvey v. Famie (marriage — lex loci contractus), 8 App. Cas. 43 ... ... 609

Hatch't;. Willamette Iron Bridge Co. (federal control over bridge), 6 Fed.

Rep. .326 525

Haybum's Case (extra-judicial opinions), 2 Dall. (U.S.), 409 ... ... ... 766

Hays V. Pacific Mail Steamship Co. (State tax on vessels), 17 How. (U.S.) 596 858 Head Money Cases (taxation of alien immigrants — treaties), 112 U.S. 580

426, 520, 542, 550, 557, 769

Becla Foundry Co. r. Walker (trade mark), 14 App. Cas. 550 598

Henderson v. Major of New York (State tax on foreign passengers), 92 U.S.

259 623,847,853,855,876

Hepburn r. Griswold (legal tender), 8 Wall. (U.S.) 603 575,581

Hill t;, Thompson (patent), 2 xVIoore 224 ^ 597

V. United States (suits against United States), 9 How. (U.S.) .386 773, 806

Hillimore v. Colbourne (provincial tax on federal employee), 32 Can. Law. J.

Reps. N.S. 201 553

Hine, The, v. Trevor (admiralty jurisdiction), 4 Wall. (U.S.) 555 800

Hitz, i?a:/). (jurisdiction — proof of), 111 U.S. 766 ... -■ ... ... 772

Hodge V. The Queen (provincial control over liquor traffic), 9 App. Cas. 117... 509, 546

Hoge's Case (election laws), CI. and Hall (U.S.) 135 427

Holbom Union v. Chertsey Union (residence), 54 L..LM.C. 53 -477

Holmes 1-. Jennison (extradition). 14 Pet. iU.S). 540 ... 620,6.35

Home Insurance Co. v. New York (State tax on federal bonds— invalid),

134 U.S. 594 .. 5.59

Hope Insurance Co. v, Boardman (jurisdiction — corporation not a citizen),

5Cranch(U.S.)57 777

Homer r. United States (treaty), 143 U.S. 570 ... 769

Houston V. Moore (naval and military power — concurrent jurisdiction),

5 Wheat. (U.S.) 1 565, 80a

TABLE or CASES.

Howe Machine Co. v. Gage, 100 U.S. 675 (see Machine Co. r. Gage)

Huber v. Reily (State control over sufiFrage), 53 Penns. State Reps. 112 ... 468

Hudson's Trade Marks (18S6), 32 Ch. D. 311 599

Hunter r. Nockolds (title— statute), 19 L.J. Ch. 177 281

Huse V. Glover (commerce — improvement of rivers), 119 U.S. 543 ... 540, 850,. 885 Huson V. South Norwich (provincial control over liquor traflSc), 24 S.C.R.

(Can.) 146 513

Hvlton V. United States (direct taxes defined), 3 Dall. (U.S.) 171 550

Illinois V. Illinois C. R. Co , 146 U.S. 387 {see State v. Illinois C.R. Co.) Inman S. S. Co. v. Tinker (inter-state commerce — State wharfage tax), 94

U.S. 238 847,854

Insurance Co. v. Massachusetts, 10 Wall. (U.S.) 566 (see Liverpool Insurance

Co. V. Massachusetts) Insurance Co. v. Morse, 20 Wall. (U.S.) 445 (see Liverpool Insurance Co. v.

Morse) Inter-State Commerce Commission v. Alabama Midland R Co. (commission

may not prescribe rates), 168 U.S 144 521,745,898,912

Inter-State Commerce Commission v. Baltimore and Ohio Co. (power of the

commission — wholesale rate — undue preference), 145 U.S. 263 521, 905, 911, 914 Inter-State Commerce Commission v. Brimson (power of commission to

summon witnesses), 154 U.S. 447 521,898,903

Inter-State Commerce Commission v. Cincinnati, &c., R. Co. (powers of

commission— unduly low rates), 167 U.S 479 898,900,912,916

Intor-State Commerce Commission v. Detroit Grand Haven, &c., R. Co.

(competition — undue preference), 167 U.S. 633 ... ... ... ... . 912

Iron Clay Brick Manuf. Co., Rf (bankruptcy — winding up— provincial laws —

validity), 19 Ont. Keps. 113 589

Isaacson v. Durant (aliens). 17 Q.B.D. 54 ... ... .. ... ... ... 478

Jackson, Ex parte (post offices— lotteries — federal power), 96 U.S. 727 ... 560

Jeflerys f. Boosey (copyright), 4 H L. Cas. 815 ... ... ... ... ... 593

Johnston v. Minister of St. Andrew's Church, Montreal (appeal to Privy

Council— " final"), 3 App. Ca. 159 746,747,752

Jolly V. Terre Haute Draw-bridge Co. (vessels carrying federal commerce,

protected), 6 McL. (U.S ) 237 541

Jones t'. lyeague (jurisdiction — resident of State), 18 How. (U.S.) 76 777

Juilliard V. Greenman (legal tender— construction), 110 U.S. 421 ... 559,575,581 Junction R. Co., i?e, 45 Upper Can. Q B.R. (see Grand Junction R. Co., Re) Kaufi'man Milling Co v. Missouri Pacific R Co. (federal power to regulate

inter-state carriage), 2 Inter-state Com. Reps. 400 521

Kearnsr. Cord wainers Co. (preamble), 28 L.J. C. P. 285 285

Kelley V. Rhoads (State control over depasturing cattle, 51 Pac. Rep. Wyo.

(U.S.) 593 ... 519

Kempe's Lessee v. Kennedy. (inferior courts), 5 Cranch (U.S.) 185 726

Kemlall v. United States (suits against United States), 12 Pet. (U.S.) 524 ... 773, 806 Kennedy v. Purcell (disputed election— appeal to Privy Council), Wheeler

C.C.,314 '.': .. .: 497,498

Kennett v. Chambers (judicial power— political question), 14 How. (U.S.) 38 723

Kenrick V. Lawrence (title— statute), 25 Q.B.D. 99 ... 281

Kentucky v. Dennison (inter-state extradition — political question), 24 How.

(U.S.) 66 , ^ 620,775

Kentucky Bridge Co. v. Lfmisville, Ac. , Co. (Inter-State Commission— execu- tive power), 37 Fed. Rep. (U.S.) 567 898

Kidd V. Pearson (production not commerce — sale of alcohol — State regulation

—valid), 128 U.S. 1 :. ... 518,855

Kielley v. Carson (colonial legislature— prerogative— parliamentary privilege),

4 M.X.. P.C. 63 ... . ... ..* ... *^ ^^.., ^.:. 309,504

KillxMim ». Thomp.son (qualification of members), 103 U.S. 168 382,475

Killam, Re (Provincial insolvency laws— validity), 14 Canada L.J. (N.S.) 242 589 Kimmish v. Ball (pr)lice power— importation of diseased cattle - State law- valid), 129 U.S. 217 853,857,960

King, 'Ihe (see Rex)

Kinney v. Dudman (federal bankruptcy and insolvency laws), 2 Russ. and

ChcR., Nova Scotia Reps. 19 589

Klein, Re (bankruptcy and insolvency— federal control), i How. (U.S.) 277 ... 587

Kold r. United States (eminent domain), 91 U.S. 367 367,640

Koj)M V. Regina (leave to apy)eal— criminal case) (1894), App. Cas. 650 ... 752

Krefft, Exp. (mandamus to officer of Crown), 14 S.C.R. (N.S. W.) 446 ... 782

TABLE OF CASES.

PAGE.

Lake Shore and Michigan R. Co. v. Ohio (navigable waters), 165 U.S. 365 ... 882

Lamplugh i\ Norton (construction — statute), 22 Q.B.D. 452 ... ... ... 364

Lanmans Case (Senators — vacancy), CI. and Hall (U.S.) 871 ... 4.37

Lanz V. Randalls (foreigaer — right to vote — citizenship), 4 Dill. (U.S.) 425 ... 602

Lapierre 1/. Mcintosh (alien— disability), 8 L.J.Q.B. 112 600

Latless r. Holmes (commencement of Act), 4 T.R. 660 ... ... . .. 331

Lautour v. Teesdale (marriage — Cauon law), 2 Marsh. 243 ... ... ... 609

Leather Cloth Co. v. American Leather Cloth Co. (trade mark), IIH. L. Cas.

523 598

Lees V. Summersgill (preamble), 17 Ves. 508 .. ... 285

Legal Tender Cases (construction of constitution), 12 Wall. (U.S.) 457 575, 581, 796

Legal Tender Case, 110 U.S. 421 (see Juilliard r. Greenman)

Leisv I'. Hardin (State tax on imported goods— invalid), 135 U.S. 100

515, 518, 528, 530, 537-8, 846, 848, 850, 851, 853, 943, 946

Leloup i\ Port of Mobile (inter-state telegrams — State licenses), 127 U.S. 640 541, 847 Lempriere r. New Pinnacle Group S.M. Co. (service out of jurisdiction -

British subject), 21 A. LT. 182 615

Lenoir v. Ritchie (appointment of Queen's counsel), 3 S.C.R. (Can.) 575 ... 693 Leprohon v. City of Ottawa (Pro\incial tax on federal oflBcer), 2 Ont. App.

Rep. 522 ... . • 551, 553. 554, 555, 949

Letellier's Case (removal of Lieutenant-Governor), Todd, Pari. Gov. in Col.

(2nd Ed.) p. 612 732

Lewis I-. Graham (residence defined), 20 Q.B.D. 780 960

License Cases (liquor), 5 How. (U.S.) 504 517, 518, 527-8. 538, 602

License Tax Cases (police power), 5 Wall. (U.S.) 462 ... ... ... ... 555,850

Lindsay v. Cundy (interpretation clause), 1 Q B.D. 348 ... ... ... ... 365

Ling Sing v. Washburn (Chinese — discriminating laws), 20 Calif. Reps 534 ... 628

Lionberger r. Rouse (State tax on shares in national banks), 9 Wall. (U.S.) 468 949 Liquor Prohibition Case (Canada) (1896;, App. Ca. 348 (see Attorney-General

of Ontario v. Att. (Jen. for Canada) Lithographic Co. v. Sarony, 111 U. S. 53 {see Burrow-Giles Litho. Co. r. Sarony ) Liverpool Insurance Co. i". Massachusetts (insurance business is not commerce),

10 Wall. (U.S.) 566 583,853

Liverpool Insurance Co v. Morse (removal of causes from State to federal

courts), 20 Wall (U.S.) 445 959

Loan Association v Topeka (taxation — power of States), 20 WalL (U.S.) 655 990

Logan V. Courtown (construction — statute), 20 L.J. Ch. 347 ... ... ... 364

London and N.W.R Co. v. Evershed, 3 Q.B.D. 134 (see Evershed v. London

andN.W.R. Co.) i

London Corp. c. Att.-(]len. (Crown— when bound), 1 H.L. Cas. 439 ... ... 321

Lopez r. Burslem (parliament — foreigners), 4 Moo. P.C. 300 ... ... ... 355

Lord r. Steamship Co. (commercial marine — internal commerce), 102 U.S. 541 518, 855

Lotlawanna, The (lien on vessels — State and federal LawK 21 Wall. (U.S.) 588 540, 874

Loughborough v. Blake (operation of federal laws), 5 Wheat. (U.S.) 317 551, 658, 941

Louisiana r. Jumel (jurisdiction — suits against public officers), 107 U.S. 711 775

V. Texas (controversies between States), 176 U.S. 1 ... ... ... 775

Louisville, &c , R. Co. v. Behlmer (discrimination — competition), 175 U.S. 648 912 r. Letson (jurisdiction— corporation an inhabitant), 2

How. (U.S.) 497 777

Low r Routledge (see Routledge v. Low)

Lubbock r. Potts (colony — plantation). 7 Ea.st 449 36

L' Union St. Jacques de Montreal i'. Belisle (bankruptcy laws — provincial ^nd

federal powers), L.R. 6 P.C 31 588,589,590,693

Luther v. Borden (judicial power — political question), 7 How. (U.S.) 1

565, 722, 792, 927, 964 Lyall V. Jardine (Privy Council — special leave to appeal), 7 Moo. P.C.N S.

116; LR. 3 PC. .318 761

Lyon t7. Morris (appeal — " final and conclusive"), 19 Q.B.D. 139 ... 746 McAllister, A'e (State tax on imports — original package), 51 Fed. Rep. (U.S.)

282 846

McCall v. California (inter-state commerce — State license), 136 U.S. 104 ... 847, 857 McClanaghan r. St. Ann's M.B Soc. (voluntary liquidation not insolvency),

24Lower Can. Jur. 162 ; 2 Cart Wright 237 ' 589

McCormick v. Sullivant (Inferior Courts), 10 Wheat. (U S.) 192 726

McCready v. Virginia (fisheries — beds of tide waters), 94 U S. 391 961, 970

McCuUoch V. Maryland (construction of Constitution— federal power to

establish national bank), 4 Wheat. (U.S.) 316

286, 551, 552, 553, 554, 555, 577, 652, 875, 949

xxviii. TABLE OF CASES.

PAGE.

McCullough V. Brown (South Carolina dispensary laws), 41 South Carolina 220 947

McElmoyle v. Cohen (inter-state enforcement of judgments), 13 Pet. (U.S. ) 312 963^

McGregor v. Cone (State tax on imports— original package), TSN.W. Rep. 1041 846

Machine Co. v. Gage (commerce — State tax on peddlers), 100 U.S, 675 ... 849

Mackenzie, Exp. (mandamus to officer of Crown), 6 S.C.R. (N.S. W.), 306 ... 782 Macleod v. Att.-Gen. of New South Wales (extra-territorial jurisdiction)

(1891), App. Cas 455 355

McLeod V. McGuirk (Federal insolvency laws), 15 N. Bruns. Rep. (2 Pugs.) 248 689 V. Wright (Federal insolvency laws), 17 N. Bruns. Rep. (1 Pugs, and

Burb.)68 589-

McNab w. Robertson (waters of rivers — percolating water) (1897), App. Cas. 129 893

MeNiel, £"3; paWe (pilots— State regulations), 13 Wall. (U.S.) 236 641

McNutt V. Bland (jurisdiction — citizens of different States), 2 How. (U.S.) 9 777

Magner r. People (commerce — game laws), 97 Illinois 33... ... ... ... 854

Maine v. Grand Trunk R. Co. (commerce — State tax on receipts), 142 U.S. 217 849

Mallinson v. Mallinson (custody of children), 35 L J. Mat. 84 ... ... ... 612

Mann. /?e (bankruptcy), 13 V.L.R 590 592

Mansfield, &c., R. Co. v. Swan (federal jurisdiction — consent of parties), 111

U.S. 379 785

Mansion House Assoc, v. London and S. W.R. Co. (home and foreign merchan- dise—undue preference) (1895), 1 Q.B. 927 910,922

Marbury v. Madison (judicial power to declare laws invalid — mandamus to

federal officers), 1 Cranch (U.S.) 137 756,778-9,781,791

Maritime Bank of Canada f. New Brunswick Receiver-General (Crown — pre- rogative in Dominion and in Provinces) (1892), App. Cas. 437 . ... 798, 931

Marks, Exp. (treaty— interpretation of), 15 N.S. W. L.R. 179; 10 W.N. 224 770

Marois, i?e (prerogative of appeal). 15 Moo. P. C. 189 ... ... ... ... 747

Marriott v. London and N. W.R. Co. (railway omnibus— undue preference), 26

L J. C.P. 154 907

Marshall r. Murgatroyd (ship on high seas), L.R. 6 Q.B. 31 357

Martin v. Hunter's Lessee (construction— judicial power), 1 Wheat. U.S. 304

286, 511, 575, 651, 723, 765, 802"

v.Mott (military power), 12 Wheat. (U.S.) 19 565

Marye v. Baltimore and Ohio R. Co. (inter-state commerce — State tax on

property), 127 U.S. 117 849

Mason v. Armitage (preamble), 13 Ves. 25 285

Matheson Brothers, Limited, Be (winding-up — foreign company), 27 Ch. D.

225 ... 605

Maxwell V. Dow (trial by jury), 176 U.S. £81 810

Maynard v. Hill (territories— government— divorce laws), 125 U.S. 190 ... 972

Mayor, The, v. Cooper (federal jurisdiction), 6 Wall. (U.S.) 247 ... ... 802

Medway Navig. Co. v. Romney (riparian rights— reasonable use), 9 C.B.N.S.

575 892

Memphis, &c., R. Co. v. Alabama (jurisdiction — citizenship of corporation),

107 U.S. 581 ... 777

Mercer's Case (resignation of members), CI. and Hail (U.S.) 44 437

Merchants' Bank of Canada v. Smith (commerce— banking), 8 Ont. App. 15 ;

8 S.C.R. (Can.) 512 ... 578

Merchants' Bank of Halifax v. Gillespie (winding-up foreign corporations),

10 S.C.R. (Canada) 312 349,591,592,606

Merchants' National Bank v. United States, 101 U.S. 1 (see National Bank v.

Unite<l States)

Merrill r. Sherburne (legislative power), 1 New Hamp. 199 ; 8 Amer. Dec. 52 721 Mersey Docks v. Cameron (Crown property exempt from taxation), 11 H.L.

Cas. 443 321

Metcalfr. Watertown (original jurisdiction), 128 iil.S. 586 ... ... ... 785

Metropijlitan R.R. Co. v. District of Columbia (federal territory— government)

Middlesex (Sheriff), Case of (parliamentary privilege— contempt), 11 A. andE.

659

.... 502

Mirlland Ry. Co. v. Ambergate, &c., Ry. Co. (interpretation clause), 10 Hare

359 ... ... ... ... ... ._ _ 3gg

Millar r. Taylor (copyright), 4 Burr. 2.303 ... ... ... .'. ... ... 593

Miller I'. Mayor of New York (commerce -navigation-obstruction), 109

x,u ^ ^^^ ^■■\ 516,517,531,640,884

Miller r. Race (bank note), 1 Burr. 452 575

Wills r. Durycc (proof of judicial record), 7 Cranch (U.S.) 481 ". ... 963

TABLE OF CASES.

Milnor t;. New Jersey R. Co. (State canals, highways, bridges), cited Baker,

Annot. Const. 25 ... ' 542

Miner v. Gilraour (riparian rights — reasonable use), 12 Moo. P.C. 131 892

Minnesota v. Barber (police power — inspection of animals before slaughter),

136 U.S. 313 536-7,848,857,944

Minor r. Happersett (citizen), 21 WalL (U.S.) 162 ^.. 776

Mississippi r. Johnson (judicial power — political question), 4 Wall. (U.S.) 475 723

Mitchell I' County Commissioners (federal notes exempt from State taxation),

91 US. 206 ... ... 559

Mitchell I". Harmony (military power — wrong committed in foreign country —

jurisdiction), 13' How. (U.S.) 115 642

Mobile V. Kimball (commerce — navigable streams — State tolls), 102 U.S. 691

518, 532, 540, 541, 849, 852, 885 Modee Kaikhooscrow Hormusjee v. Cooverbhaee (prerogative of appeal),

6 Moo Ind. A pp. 448 747

^lonongahela Na\ig. Co. v. United States (na\'igable streams — federal power),

148 U.S. 312 8.^2. 88.3, 885

3/o7i^e//o, The (navigable waters), 11 Wall. (U.S.) 411 540,882

JLToJt^cWo, The (navigable waters), 20 Wall. (U.S.) 4:i0 882,883

Montreal ^Mayor) v. Brown (creation of right of appeal), 2 App. Ca. 168 ... 746

Montreal v. Ecclesiastiques de St. Sulpice (Privy Council — special leave to

appeal), 14 App. Ca. 660 .. ... -- ... ... 753

Moore v. AJmerican Transportation Co. (internal commerce), 24 How. (US.) 1 855

Moran v. New Orleans (inter-state commerce — State licenses), 112 U.S. 69 ..'. 847

Morgan v. Parham (State tax on vessels), 16 WalL (U.S.) 471 ... ... ... 858

[Morgan's Steamship Co. v. Louisiana Board of Health (quarantine — State

fees), 118 U.S. 455 567,850,857

Mormon Church v. United States, 136 U.S. 1 {see Roraney v. United States)

Morrill v. Wisconsin (State tax on peddlers), cited Baker, Annot. Const. 28 ... 857

Morrison v. Springer (federal suffrage — State regulation), 15 Iowa Reps. (U.S.)

345 468

MostjTi V. Fabrigas (Colonial Governor— liability for wrongs), 1 Cowp. 161 ... 391

Munn V. Illinois (storage of grain — State regulation), 94 U.S. 113 533, 852, 857, 876

Murphv v. Ram.sev (fe<leral territories — government), 114 U.S. 15 ... ... 973

1 r. Ryan (fishery), Ir. Reps. 2 C.L. 143 568

Musgrave v. Pulido (Colonial Governor— authoritj-). 5 App. Cas. 102 ... ... 391

Musgrove r.* Chung Toj- (we Chung To\' v. Musgrove)

Myers v. Baltimore Commissioners (State tax on imported property), 35 Atl.

Rep. 144 848

Nash%ille, &c , R. Co. v. Alabama (commerce— license fees for railroad

employees). 128 U.S. 96 850,857

Nathan r. Louisiana (State tax on money — brokers — valid), 8 How. (U.S.) 73

516,517,856 National Bank v. Kentucky (federal securities exempt from State taxation ;

(State tax on shares in national banks), 9 Wall. (U.S.) 353 ... ... ... 555, 949

National Bank r. United States (federal power to tax bank established by

State laws), 101 U.S. 1 555

National Bank v. Yankton County (federal territories — government), 101 U.S.

129 972, 973

National Starch, &c. . Co r. Munn's Maizena Co. (treatj'— interpretation of),

13N.S.VV.L.R Eq 101 770

Neal 1-. Delaware (federal power to prevent electoral discriminations), 103

U.S. 370 468,623

Neilson v. Garza (inspection laws), 2 Woods (U.S ) 287 ... ... ... 944

Newby r. Van Oppen (foreign corporation doing business in British posses- sion), L.R. 7 Q.B. 293 605

New Hampshire v. Louisiana (jurisdiction — controversies between States), 108

U.S. 76 774

Newland r. Marsh (legislative power), 19 Illinois 383 ... ... ... ... 721

New Orleans f. De Armas (treaty— "arising under"), 9 Pet. (U.S.) 224 ... 770

V. Winter (jurisdiction — resident of territory), 1 Wheat. (U.S.) 91 777

Waterworks Co. r. Tammany Waterworks Co. (police power —

private property taken for public use), 14 Fed. Rep. (U.S.) 194 642

Newport, &c.. Bridge Co. r. United States, 105 US. 470 {see Bridge Co. r.

United States) Newry r. Great Northern R. Co. <group rates — imdue preference), 7 Ry. and

Can. Traf. Cas. 184 908

TABLE OF CASES.

New York (and see People of New York)

New York v. Louisiana (jurisdiction — controversies between States), 108 U.S.

76 774,775

New York v. Miln (commerce— reports — ship mastei-s), 11 Pet. (U.S.) 102

526-7, 529, 657 New York Board of Trade v. Pennsylvania R. Co. (federal power to regulate

rates of carriage), .*] Inter-State Com. Rep. 417 ... ... ... ... 521

Nicholson v. Great Western R. Co. (preference not necessarily unreasonable),

' 28L.J.C.P 89 907,914

Norfolk and Western R. Co. v. Pennsylvania (inter-state commerce — State

tax on railway company), 136 U.S. 114.. ... ... ... ... ... 847,857

North Lonsdale Iron Co. v. Fumess R Co. (group rates — undue preference),

60L.J.Q.B. 419 90S

Norton v. Shelby County (laws in excess of legislative power are void), 118

U.S. 425 346, 939

Norwich Railroad Co. v. Johnson, 15 Wall. (U.S.) 195 (see Railroad Co. v.

Johnson)

Nuth v. Tamplin (construction— statute), 8 Q.B.D. 247 364

Ogden r. Saunders (bankruptcy — State laws), 12 Wheat, (U.S. ) 213 587

Olcott V. Supervisors (railway — eminent domain), 16 Wall. (U.S.) 678 ... 641

Oriental Bank Corporation, Re (Crown— priority), 28 Ch. D. 643 322

Ormerod v. Todmorden Joint Stock Mill Co. (riparian rights — reasonable use),

11 Q.B.D. 155 892

Osborn v. Bank of the United States (State tax on branch of federal bank). 9

Wheat. (U.S.) 738 552, 602, 772, 773, 875, 949

Osborne v. Mobile (concurrent legislative power of States), 16 Wall. (U.S.) 479 856

Otto 1?. Linford (patent), 46 L.T. 35 597

Ouachita Packet Co. ^^ Aiken (wharfage rates), 121 U.S. 444 .. 532

Owen, Exp. (provincial tax on federal officer), 20 N. Bruns. Rep. (4 Pugs.

andBurb.)487 553

Owings V. Norwood's Lessee (treaty — "arising under"), 5 Cranch (U.S.) 344 770

Ox lade V. Eastern Counties R. Co. (special rate — undue preference), 26

L.J.C.P. 129 907

Pace r. Burgess (commerce — State stamp fee), 92 U.S. 372 519,849

Pacific Mail Steamship Co. v. Joliffe, 2 Wall. (U.S.) 450 («ee Steamship Co.

V. JoliflFe) Pacific Railroad Co. v. Peniston (State tax on corporation), 18 Wall. (U.S.) 5

552, 554, 655 Packet Co. r. Keokuk (wharfage rates— State control), 95 U.S. 80 ... 536, 796, 850 Palmer r. Cuyahoga Co. (navigable streams — obstructions — improvement),

3McL. (U.S.)226 541

Palmer v. London and S.W.R. Co. (undue preference— question of fact),

L.R. 1 C.P 588 ... 745,909,915

Panter r. Attorney-General (commencement of Act), 6 Bro. Cas. Pari. 486 ... 331

Parker I'. Overman (tax bill— machinery clauses), 18 How. (U.S.) 137 ... 66»

Parsons v. Chicago and N.W.R. Co. (local and through rates- undue

preference), l(i7 U.S. 447 .. 912

Passenger Cases (State tax on alien passengers), 7 How. (U.S.) 283

516, 518, 520, 528-9. 855, 877 Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U.S. 345 ... 944

Patterson r. Gaslight Coke Co. (patent), 2 Ch I). 812 597

t'- Kentucky (police powers— explosives), 97 U.S. 501 850,851

Paul V. Virginia (insurance is not commerce— State license fee), 8 Wall.

(U.S.) 1H8 ... 583,849,961

Pawlet (Town of) v. Clark (jurisdiction -land claimed under grants of

different States), 9 Cranch (U.S.) 292 801

Peacock w. Bell (inferior court.s— jurisdiction), 1 Saund. 73 726

Pearce V. Scotchcr (fishery), 9 Q.B.I). 162 569

Peete v. Morgan (State tax on foreign vessel— quarantine), i9 Wall. (U.S.)

581 85»

Peik V. Chicago and N.W.R. Co, (inter-state railroad— minimum rate), 94

„ U.S. H}4 856,857

Peirce v. New Hampshire. 5 How. (U.S.) .)04 (.see License Ca.ses)

Pembina Mining Co. v. Pennsylvania (commerce -State license fee on foreign

corporation), 125 U.S. 181 849,856

Ptnniman's Case (statute unconstitutional in part), 103 U.S. 714 ... ... 796-

Pennoyer w, Neff (service of process), 95 U,S. 714 96:i

TABLE OF CASES.

PAGE.

Pennsylvania v. Wheeling Bridge Co. (commerce — navigable river — bridged,

13 How. (U.S.) 518 526,530-1,032,540,886

Pennsylvania v. Wheeling Bridge Co. (commerce — navigable river — federal

power), 18 How. (U. 8.) ■421 ... 517,531,852,878

Pensacola Tel. Co. v. Western Union Tel. Co. (electric telegraph an agency

of commerce), 96 U.S. 1 518,534,541,560

People V. Compagnie Generale Transatlantique (inspection laws— State tax on

foreign passengers), 107 U.S. 59 .. ... ... 847, 855, 944

People r. Edye (inspection laws — purpose), 11 Daley (U.S ) 132 944

People f. Hawkins (commerce — labelling convict-made imports\ 31 N.Y.

Suppl. 115 .. ... ... ... ... ... ... ... ... ... 851

People V. Raymond (discriminatory legislation against Chinese), 34 Calif.

'Rep. (U.S.) 492 628

People of New York v. Commrs. of Taxes, 2 Wall. (U.S.) 200 (see Bank Tax

Case) Permoli v. First Miinicipalitv (religious liberty dependent on State laws),

3 How. (U.S.) 589 .. ". 953,970

Pervear v. Commonwealth (original package), 5 Wall. (U.S ) 475 ... ... 555

Philadelphia Steamship Co. v. Pennsylvania ^commerce — tranportation — Stat«

tax on receipts), 122 U.S. 3C6 .. ... 517,849,856

Philip V. Philip (access to children), 41 L.J. Prob. 89 612

Philipps I'. Rees (construction - statute), 24 Q.B.D. 17 365

Phillips V. Eyre (Crown— colonial legislature^privileges), L.R. 6 Q.B. 1 309, 310, 355 Phipps w. London and N.W.R. Co. (competitive rates - undue preference —

question of fact) (1892), 2 Q.B. 229 745,906,907,908-10,915,916,918

Pickard i'. Pullman Car Co. (tax on inter-state commerce), 117 L'.S. 34 ... 846, 856

Pisani r. Lawson (alien— libel right to sue), 6 Bing. N.C. 90 600

Pittsburg Coal Co. v. Bates iState tax on sales), 156 U.S. 577 848

Plumley v. Massachusetts (police power— sale of oleomargarine), 155 U.S. 461 851

Polgla.ss r. Oliver (legal tender), 2 Crompt. and Jar 15 . ... 575

Pollard V. Hagan (federal territory— government), 3 How. (U.S.) 212 658, 970

Pollock V. Farmers' Loan and Trust Co. (direct taxes requiring apportionment),

157 U.S. 429 ; and 158 U.S. 601 549,556

Pound r. Turck (dam across navigable stream), 95 US. 459 ... 525, 532, 858, 885

Powell r. Pennsylvania (police power— sale of oleomargarine), 127 U.S. 678 ... 850

Presser o. Illinois (right to bear arms), 116 U S. 252 564, 796

Preston v. Finley (State tax to exclude obscene paper), 72 Fed. Rep. (U.S.) 850 518, 851 Prigg V. Pennsylvania (Constitution — construction implied powers), 16 Pet.

(U.S.) 539 652, 796

Prince v. Gagnon (Privy Council - special leave to appeal), 8 App. Ca. 103 ... 753

Provident Institution i\ Massachusetts (federal securities exempt from State

taxation), 6 Wall. (U.S.) 611 559,949

Provincial Fisheries, /le ( regulation of fisheries), 26 S.C.R. (Can.) 444 ... 569

Pullman's Palace Car Co. v. Pennsylvania (inter-state commerce — State tax on

railroad stock), 141 U.S. 18 849

Pumpelly v. Green Bay Co. (eminent domain — compensation), 13 Wall. (U.S.)

166 641,642

Queen, The (see Regina)

Quirt V. The Queen (winding-up ; private bill legislation), 19 S.C.R (Can.) 510 590

Rahrer, i?e (Federal and State laws— harbour dues), 140 U.S. 545 853,946

Railroad Co. v. Baldwin (federal power to authorize railway construction), 103

U.S 426 ... ... 972

Railroad Co. v. Fuller (posting railway rates— State law), 17 Wall. (U.S.) 560 856

Railroad Co v. Husen (police power— State law restricting importation of

cattle), 95 U.S. 465' 518,533,847,857

Railroad Co. 1-. Johnson (legal tender), 15 Wall (U.S.) 195 575

Raih-oad Co. r. Peniston, 18 Wall. (US.) 5 (nee Pacific Railroad Co. v.

Peniston) Railroad Co. r. Richmond (commerce — bridges across navigable rivers), 19

WaU. (U.S.)584 541,856

Railroad Co. r. Tennessee (jurisdiction— suit against State), 101 U.S. 337 ... 774

Railroad Co. (Morgan L. and T.) r. Board of Health (inspection laws), 36

Louisiana Annu. 666 ... ... ... ... ... ... ... ... 944

Railroad Companies v. Schutte (statute unconstitutional in part), 103 U.S. 118 796

Railway Co. v. Ramsey (federal jurisdiction -admission), 22 Wall. (U.S.) 322 785

Ralston I'. Smith (patent), 11 H.L. Cas. 223 597

Ransome v. Eastern Counties R. Co. (competitive rates — undue preference),

26L.J.C.P. 91 907

TABLE OF CASES.

Ransome v. Eastern Counties R. Co. (group rates -undue preference), 27

L.J.C.P. 166 907

Ransome r. Eastern Counties R. Co. (trainload— undue preference), 29

L.J.C.P. 329 908

Ratclifff. Ratcliff (divorce-domicile), 29 L.J. Mat. 171 611

Ray V. McMackin (inter-colonial extradition), 1 V.L.R. (L.) 274 ... 355, 617, 630

Reade w. Conquest (copyright). 30 L.J.C.P. 209 593

Reading Railroad Co. v. Pennsylvania (see State Freight Tax Co. )

Reed V. Cosden (election returns), Cl. and Hall (U.S.) 353 438,440,475

Regina v. Amer (justice in territories), 42 Upper Canada Q.B. 391 973, 983

V. Anderson (British ship— offences on board), L.R. 1 C.C. 161 ... 358

V. Armstrong (British ship — offences on board), 13 Cox, C.C. 185 ... 358

V. Bay ley (Crown— when bound), 4 Ir. Eq. R. 142 321

V. Bortrand (prerogative of appeal), L.R. 1 P.C. 520 ... ... ... 750, 752

V. Boiler Explos. Act Commr-s. (interpretation clause) (1891), 1 Q.B.

703 365

Regina v. Bowell (Provincial tax on federal officer), 4 Brit. Columbia Reps.

498 553

Regina «. Brierly (extra-territorial laws), 14 Ont. Reps. 525 ... ... ... 602

V. Burah (plenary legislative power), 3 App. Cas. 889 .. 509

V. Call, Ex parte Murphy (extra-territorial jurisdiction), 7 V.L.R. (L.)

113 354,614,618

Regina v. Carr (British ship — offences on board), 10 Q.B. D. 76 ... 358

V. Chapman (fraud upon public officer), 18 L. J.M.C. 152 809

V. College of Physicians (meaning of "exclusive"), 44 Upper Can. Q.B.

564 350, 656

Regina z'. Cruise (Crown — priority), 2 Ir. Ch. R. 65 ... ... ... ... 322

1). Dudley (British ship — offences on board), 14 Q.B, D. 273 358

V. Fredericton (City), 19 N. Bruns. (3 Pugs, and Burb.) 139 (see

Fredericton City v. the Queen)

Regina t'. Hall (misdemeanour) (1891), 1 Q.B. 747 470

V. Hertford College (construction of statutes — extrinsic evidence), 3

Q.B.D. 693 796

Regina u, Keyn (Territorial waters). 2 Exch. D. 63 ... 355, 359

V. King's County Justices (Liquor Licenses — provincial control), 15 N.

Bruns. (2 Pugs.). 535 542,544

Regina w. Lancaster (bribery of public officer), 16 Cox 737 ... ... ... 809

V. Leslie (British ship — oflences on board), 8 Cox, C.C, 269 358

V. Local Government Board (prohibition to public bodies), 10 Q.B.D. 309 783

V. London (Bishop), (Construction— Statute), 24 Q.B.D. 213 365

V. Lopez (British ship - foreigner on board), 27 L.J. M.C. 48 .. ... 358

V. Lords Commissioners of Treasury (mandamus to officers of Crown),

L.R. 7Q.B. 387 781

Regina V. Mallow Union (Title— Statute), 12 Ir. C. L.R. 35 365

i>. Most 'Construction— Statute) 7 Q.B.D. 244 365

V. Pearce (Interiiretation clause), 5 Q.B.D. 386 366

V. Powell (no mandamus to sovereign), 1 Q.B. 352 .. ... ... 781

w. Robertson (Fisheries), 6 8. C.R. (Can.) 52 569

V. Sattler (British ship— foreigner on board), 27 L.J. M.C. 48 358

r. Slator (indictment— information), 8 Q.B.D. 267 808

V. Taylor (exclusive legislative power), .36 Upper Can. Q.B. 183 ... 349

V. Walker (misdemeanour — common law), L.R. 10 Q.B. .355 470

V. Wellington County, (Insolvency laws— provincial and federal —

conflict), 17 Ont. Reps. 615 591

Regina I'. Williams (liability of Crown for tort), 9 App Ca. 418 805

V. VVim»)ledon Local Board (Construction— Statute), 8 Q.B.D. 459 ... 365

V. Wing Chong (Chinese License Case), 1 Brit. Col. Rep., Part II., p.

150 ; Wheeler, C.C. 122 628

Renaud, Exp. (Imperial legislative control over colonies), 14 N. Bruns. 273 ;

1 Cart. 445 349

Rex V. Cowle (mandamus- jurisdiction of Court of King's Bench), 2 Burr. 834 781

V. Fuller (procuring base coin). Russ. and Ry. 308 809

V. Johnson (Preamble), 29 St. Tr. .303 285

V. North Curry Inhabitants (Residence defined), 4 Barn, and Cres, 959 ... 960

V. Robinson (Preamble), 2 East P.C. 1113 285

V. Sainsbury (breach of sUtute— indictable offence), 4 T.R. 451 ... ... 810

V. Button (possession of coining tools), 1 East P.C. 172 809

TABLE OF CASES. xxxiii.

Rex p. Wilkes (Judicial discretion), 4 Burr. 2539 759

«. Williams (Title— Statute), 1 W. BL 93 ... ... - ... 281

Re^-nolds r. Stockton (State judgment — when enforced in other States), 140

* U.S. 254 963

Reynolds v. United Sutes (Territorial Court - polygamy), 98 U.S. 145 ... 953 Rhode Island v. Massachusetts (construction— exceptions to a grant— juris- diction), 12 Pet. (U.S.) 6.57 •; 578,775,796

Rhodes r. Iowa (State liquor law— The Wilaon Act — operation), 170 U.S. 412 947

Rhymney R. Co. r. Rhymney Iron Co. (undue preference), 25 Q.B.D. 146 ... 921 Richards' Case (election returns — certified — qualification), CI. and Hall (U.S.)

95 438,440,475

Richards r. Butcher (trademark) (1891), 2 Ch. 522 598

V. McBride (construction of statutes— extrinsic evidence), 8 Q.B.D.

119 ._. ^ 796

Riel r. The Queen (justice in territories), 10 App. Cas. 675 350, 514, 973

Ringfret r. Pope (quarantine). 12 Quebec L. Reps. 303 ... ... ... ... 567

Robb V. Connolly (extradition -" officer of the United States"), 111 U.S. 624 620, 784 Robbins v Shelbv Taxing District (Stat« tax on commercisil travellers —

invalid). 120 U.S. 489 517,519,847

Roberts r. Reilly lextradition — inter-state — conditions), 116 U.S. 80 620

c. United States (mandamus to public officer), 176 U.S. 221 ... ... 782

Robertson, Exp. : Re Oovemor-General of N.S.W. (removal of judges),

11 Moo. P.C. 288 730

Robertson r. Pickrell (faith and credit), 109 U.S. 608 963

Robinson r. Barton-Eccles Local Board (interpretation clause), 8 App. Cas.

798 366

Robinson r, Campbell (common law — federal jurisdiction), 3 Wheat. (U.S.)

212 788

Romney ». United States (federal territories — government), 136 U.S. 1 ... 972, 973

Rooke's Case (judicial discretion), 5 Coke Rep. 100a ... ... ... 759

Rothes V Kirkcaldj' Waterworks (construction — statute), 7 App. Cas. 694 . . 365

Rouanet, Exp. (treaty— interpretation of), 15 N.S. W.L.R. 269 ; 11 W.N. 55 770 Routledge r. Low (copyright — colonies — aliens), L.R. 1 Ch. 42 ; 3 H. L. 100

348, 594, 595, 6U0, 602, 958 Ruggles 1-. Manistee River Improvement Co. (commerce— improvement of

river), 123 U.S. 297 532

Russell V. The Queen (federal control over liquor traffic), 7 App. Cas. 829 ... 512, 545

Ryall V. Kenealy (influx of criminals), 6 W.W. and aB. (Vic.) 193 630

Ryan r. Carter (inter-state privileges and immunities), 93 U.S. 78 ... ... 960

Ryder f. Ryder (custody of children), 30 L. J. Mat. 44 612

St. Louis r. McCo}- (police powers— quarantine), 18 Missouri 238 854

r. Telegraph Co. (reasonableness of wharfage rates), 1.39 U.S. 463 ... 854

p. Wiggins Ferrj' Co. (vessels — when not taxable by a State), 11

Wall. (U.S. 423) 847, 854

Salkeld f. Johnson (statute -title), 2 Exch. 256 281,284

Sandhurst (Lady) r. Beresford Hope («e Beresford Hope v. Sandhurst) Sands r. Manistee Improvement Co (river whoUv within a State), improve- ment), 123 U.S. 288 ' 532. .540. 850, 885

Sa\-ings and Loan Assoc, v. Topeka, 20 Wall. (U.S.) 655 [see Loan Association

V. Topeka)

Scholey r. Rew (federal succession tax), 23 Wall. (U.S.) 331 556

Schollenberger r. Pennsj'lvania (State tax on imports — original package —

oleomargarine), 171 U.S. 1 ... 846,851

Scott r. Donald, 165 U.S. .58 [see Donald c. Scott)

Searl v. Lake County School District (just compensation), 133 U.S. 553 641

Severn v. The Queen (brewers' licenses^provincial control), 2 S.C.R. (Can.) 70 544, 547

Shaw r. Gould (divorce— legitimacv), 37 L J. Ch 433 611

F. Ruddin (title— statute), 9* Ir. C.L.R. 214 281

Sherlock r. Ailing (marine torts), 93 U.S. 99 542

Shively r. Bowlby (federal control of na\ngable waters), 152 U.S. 1 883

Siebold. Eocp. (imprisonment under unconstitutional law — habeas corpus), 100

U S. .371 470, 471, 472, 965

Simpson r. Fogo (civil process - service), 32 L.J. Ch. 349 616

Sinclairs Divorce Bill (divorce— domicile) (1897), App.. Cas 469 611

Sinking Fund Cases, 99 U.S. 700 {see Doggett r. Railroad Co.)

Sinnot r. Davenport (commercial marine — federal control). 22 How. (U.S.) 227 542

Slaughter House Cases (privileges and immunities of federal citizenship), 16

WaU. (U.S.)36 850,961

xxxiv. TABLE OF CASES.

Slingsby's Case (suspension of judges), 3 Swanst. 178 733

Smiles v. Belford (copyright in colonies), 1 Ont. App. Reps. 436 ;i49, 5fl5

Smith, Ji-xw. (federal jurisdiction). 94 U.S. 455 784

V. Goldie (patent— tribunal), 9 S.C.R. (Can ) 46 598

V. Merchants' Bank, 8 Ont. App. Reps, 15 (see Merchants' Bank of

Canada v. Smith)

Smyth V. Ames (State regulation of internal commerce), 169 U.S. 466 520, 874, 921 Society for Savings v. Coite <State tax on federal corporation), 6 Wall (U.S.)

594 - 949

Soon Hing v. Crowley (regulation of Chinese labour), 113 U.S. 703 623, 853

Sottomayoru. De Barros (marriage — domicile), 3 Prob. D. 1 ... ... 609

South Carolina v. Georgia (federal control over navigable waters), 93 U.S. 4

516, 540, 878, 883

Southey r. Sherwood (copyright), 2 Mer. 435 593

Spaulding v. Mead (qualification of members), CI. and Hall (U.S.) 157 438, 440, 475 Speaker of the Leg. Ass. (Vic.) v. Glass (parliamentary privilege), L.R. 3 P.C.

560 506

Spraigue v. Thompson (pilotage compulsory — State regulation), 118 U.S. 90 541, 796

Spratt V. Spratt (custody of children), 1 Sw and Tr. 215 ... ... ... 612

Springville u. Thomas (trial by jury), 166 U.S. 707 ... ... ... ... 810

State V. Engle (Goods in transit not subject to State taxation), 34 New Jersey

L. 435 519

State f. Illinois Central R. Co. (navigable waters — obstruction), 146 U.S. 387 885

V. Rhodes (Liquor law — State control — the Wilson Act) 90 Iowa (U.S.)

496 946

State V. Steamship Constitution (Police power— exclusion of immigrants), 42

Calif. 578 ; 10 Amer. Rep. 303 853

State Freight Tax Case (State tax on freight passing through- invalid) 15

Wall. (U.S.) 232 ... 516,532,796,846,848,855

State Tax on Railway Gross Receipts Case (Inter-state commerce) 15 Wall.

(U.S.) 284 ■ 542,849,855

State Tonnage Tax Cases, 12 Wall. (U.S.) 204 858,944

Stead V. Course (Power to tax includes means to enforce) 4 Uranch^U.S.) 403 668 Steamship Co. v. Joliffe (Pilots— State control subject to federal law -State

portdues), 2WalL (U.S.)450 541,853

Steamship Co u. Port Wardens (Pilotage -compulsory — State regulation), 6

Wall. (U.S.) 31 641,847,854

Steamship Co, v. Tugman (jurisdiction citizenship of corpoi-ation), 106 U.S.

118 ... 777

Stepney Election Petition, Be {see Isaacson v. Durant)

Stevenson v. The Queen (Customs duties coUeotioB - resolution of Assembly),

2W.W. anda'B. (L.)(Vic.)143 506,859

Stillman v. White Rock Manuf. Co. (boundary breams - riparian law), 3 Wood

and M. (U.S.) 5.38 889

Stockdale v. Hansard (Parliamentary privilege), 9 Ad. and El. 1 503

.Stockton V. Baltimore R, Co (federal control of navigable waters), 32 F«d.

Rep. (U.S.) 9 „ 883

Stoutenburgh v. Hennick (Federal territory— governm«it—Stat« tax on com- mercial travellers), 129 U.S. 141 „ 658,847,941

Straudert). West Virginia (trial by jury), 100 U.S. 303 810

Strawbridge r. Curtiss (jurisdiction - c-itizens of different States^, 3 Cra»ch

(US.) 267 ... 777

SturgcB V. Crowninshield (Bankruptcy— State law— Uniform), 4 Wlieat. (U.8.)

122 427,557,587

Sturtevants v. Alton City (Post Offices— federal pow*!-), 3 McL. <U-S.) 393 ... 560

Supervisors v. Stanley (statute unconstitutional in part), 105 U.S. 305 ... 796

Sussex Peerage Case (Preamble - construction), 1 1 O. and Firm 85 ... 285, 364

Sutton V. Sutton (Preamble - Marginal note), 22 Ch. 1). 511 .. 285

Swan, .ffe (Judicial power— independence), 150 U.S. 637 382

Swanton t», (ioold (construction of statute), 9 Ir.C. L.R. 234 ... 365

Tai Singjp. Macguire (sovereignty of British Pari.), 1 Brit. Uol. (Irvng) 107... 350

Tarble s Case (Naval and Military power). 13 Wall. (U.S.) 397 564

Taylor, i?c (Judicial discretion), 4 Ch. D. 157 759

— V. Barton, 6 N.S.W. L.R. 1 ; 11 App. Ca. 1«7 t«ec Bartciii v. Taylor)

Telegraph Co. v. Texas (State tax on interstate commerce), 105 U.S. 460

. r 541,846,848,855

Temple, Axp. (Witness— privilege), 2 Ves. and B. *ll 321

TABLE OF CASES.

PAGE.

Tennant f . Union Bank of Cana<la (Banking— warehouse receipts) (1894) App.

Cas 31 .••• 578,597

Tennessee r. Davis (jurisdiction— civil, criminal, »nd territorial — " arising

under the laws''), 100 U.S. 257 3^' "?I

Tennessee v. Pullman Southern Car Co. (State t^Ls on cars), 117 U.S. 51 ... 856

Texas v. White (once a State always a State), 7 Wall. U.S. 7tH> ... 293, 370, ft29

Texas and Pacific R. Co. v. Inter-State Commerce Commission (wholesale rate

— undue preference — objects of Inter-State Commerce Act), 162 U.S. 197

745, 898, 900, 905, 911-2, 914, 915 Texas and Pacific R. Co. v. Inter-State Transportation Co. (na\igable watere —

obstruction), 155 U.S. 585 •■■ 884,886

Theberge v. Laudry (controverted provincial election law — prerogative of

appeal), 2 App." Cas. 102 497,498,747,761

Thompson r. Utah (trial by jury), 170 U S. 343 810

V. Whitman (State judgments— faith and credit), 18 Wall. (U.S.) 457 963

Thomson r. Union Pacific R R. Co. (State tax on railway employed by Federal

Government), 9 Wall. (U.S.) 579 552,554

Thormann v. Frame (judgment — faith and credit), 176 U.S. 350 ... .. 963

Thurlow t,-. Ma-ssachusetts (State control over liquor tratfic), 5 How. (U.S.) 586

(and «ee License Cases) ... ... ... ... ... ... 542

Tiernan r. Rinker (inter-state commerc-e— State licenses), 102 U.S. 123 847, 848, 856

Tomlinson ». Bullock (time in statute), 4 Q.B.D. 230 331

Toronto (City) r. Virgo (regulation and prohibition distinguished) (1896) App.

Cas. 88 548

Trade Mark Cases (statute uncoastitutional in part), 100 U.S. 582 796

Train r. Boston Disinfectant Co. (police powers — quarantine), 144 ^ass. 523 ;

.jQAmer. Rep. 113 ^ 854

Transportation Co. i\ Fitzhugh (admiralty jurisdiction), 1 Black (U.S.) 574 ... 800 V. Parkersburg (wharfage rates — State regulation), 107 U.S.

691 536,850,853

Transportation Co. r. Wheeling (State tax on vessels), 99 U.S. 273 ... ... 858

Trumbull's Case (Senators— qualification), 1 Cong. El. Cas. (U.S.) 618 440, 475

Tua {-. Carriere (bankruptcy — State la w^s), 117 U.S. 201 ... ... ... ... 587

Turner r. Maryland (inspection and branding — State stamp fee), 107 U.S. 38 .. 849, 944 Turney r. Marshall (qualification of members), 1 Cong. El. Cas. (U.S.) 167 ... 440, 475 Turpin c. Burgess (State stamp fee — export stamp on goods), 117 U.S. 504 539, 846, 849

Tj'ler, T^e (judicial power —independence), 149 U.S. 164 ... . 382

Union Bank v. Tuttle (insolvencv in one colon}' — effect in another), 15 V. L.R.

258 ' 592

Union Collierj' Co. of Brit. Columbia i;. Bryden (Chinese — in mines), (1899)

App. Ca. 580 603

Union Pacific R. Co. v. Peniston, 18 Wall. (U.S.) 5 («ce Pacific Railroad Co. r.

Peniston) Union Steamship Co. of N.Z. v. Melbourne Harbour Trust (statute — headings),

9App. Ca. 365 281

United States v. Angell (Federal tax on employments), 11 Fed. Rep. (U.S.) 34 556

«'. Arjona (Coinage and currency— offences), 120 U.S. 479 ... 573

r. Bainbridge (Naval and military power), 1 Mason (U S.) 71 ... 564

V. Bellingham Bay Boom Co. (Navigation -rivers), 176 U.S. 211 883

ex rel. Boynton v. Blaine (mandamus to United States), 139

U.S 306 ... 782

United States v. Britton (federal jurisdiction — common law offences^, 108

U.S. 199 787

United States v. Coolidge (federal jurisdiction — common law offences), 1

Gallison (U.S.) 488 ; 1 Wheat. 415 786,787

United States v. Cornell (Offences in federal territory— federal jurisdiction),

2 Mason (US) 91 ... 660

United States r. Cruikshank (Implied powers — conspiring to prevent free

exercise of federal rights), 92 U S 542 652

United States r. Curtis (trial by jury), 4 Mason (U.S.) 2.32 808

e-r rel. Dunlap v. Black (mandamus to federal oflHcer), 128

U.S. 40 782

United States v. Eaton (federal jurisdiction— common law offences), 144

_ U.S. 677 787

United States o. Fisher (incidental and implied federal powers), 2 Craoch

(U.S.) 358 .. ... 652

United States v. Forty-three Gallons of Whisky (treaty— law of the land), 93

U.S. 1S8 ... ;.. ^ ... 769

TABLE OF cases;

PAGE.

United States v. Gale (federal suffrage — protection), 109 U.S. 65 470

V. Gay, 163 U.S. 427 {See United States v. Realty Co.)

V. ex rel. Goodrich v. Guthrie (mandamus to federal officer), 17

How. (U.S.)284 782

United States v. Great Falls Manufg. Co. (Private property taken for federal

purposes), 112 U.S. 645 642

United States v. Harris (Implied powers conspiracy to deprive citizens of

legal rights), 106 U.S. 629 796,961

United States v. Hartwell (" officer of the United States"), 6 Wall. (U.S.) 385 784 V. Hudson and Goodwin (jurisdiction over common law offences),

7Cranch(U.S.)32 786,787

United States t;. Jones (eminent domain), 109 U.S. 513 ... .. ... 640,641

V. Lee (jurisdiction — suits against federal officers), 106 U.S. 196 773

V. Marigold (Currency offences — implied federal powers), 9 How.

(US.) 560 573 574,652,796

United States r. Maurice (jurisdiction— suits by and against United States),

2 Brock (U.S.) 109 ... 773

United States v. Ortega (Minister —case " affecting), 11 Wheat. (U.S.) 468 ... 771

V. Rauscher (treaty— law of the land), 119 U.S. 407 769

r. Realty Co (Federal appropriating power), 163 U.S. 427 ... 666

ex rel. Redfield v. Windom (mandamus to federal officer), 137

U.S. 636 782

United States v. Reese (rights and immunities — coustruction), 92 U.S. 214 468, 472, 796

- V. Rhodes (naval and military power), 1 Abb. (U.S.) 28 ... 564

". Rio Grande Damandlrrig. Co. (river navigation — irrigation),

51 Pac. R. 674 880,890

United States v. Rio Grande Dam andlrrig. Co. (river navigation— irrigation),

174 U.S. 690 881,882,883,884,888,891,894

United States v. Russell (eminent domain- compensation), 13 Wall. (U S.) 623 642

V. Singer (federal excise tax), 15 Wall. (U.S.) Ill ^o'o

V. Tappan (taxes and imposts), 11 Wheat. (U.S.) 419 ... ... 550

V. Van Buskirk (federal excise tax), 15 Wall (U.S.) 123 ... 556

Williams (federal territory — judicial authoritj'), 4 Cranch,

C.C. (U.S.)393 ... - ()59

United States v. Wilson (bankruptcy— discharge by State law— efTect), 8

Wheat. (U.S.) 253 587

United States v. Worrall (federal jurisdiction— common law offences), 2 Dall.

(U.S.) 384 ' 785

Unity V. Barrage (statute unconstitutional in part), 103 U.S. 447 796

Uriah Tracey, Taft's Election Cases 3 437

Valin V. Langlois (disputed election — Privy Council — special leave to appeal)

5App. Las. 115 ... 497,752

Van Allen v. Assessors (delegation of power — State tax on shares in national

bank), 3 Wall. (U.S.) 573 949

Vance v. Vandercook Co. (State liquor laws— the Wilson Act), 170 U.S. 438... 947

Van Wyck i>. Knevals (railways in territories), 106 U.S 360 972

Veazie v. Moor (river wholly within a State— improvement), 14 How. (U.S ) 568 540

" ■ " • " .^ ^ . 5^3

282

... , 1 jurisdiction),

7V.L.R. (L.)248 355,360

Vidal 17. (Jirard's Executors (Christian religion recognized bv courts), 2 How.

(U.S.) 127 *'... ...^ ... ^ ... 951

Virginia, Exp (discriminating legislation— invalid), 100 U.S. 339 623

Virginia v. West Virginia (jurisdiction— disputed boundaries) 11 "Wall.

(U.S.) 39 ... *^ 775

Virginia Coupon Cases (statute unconstitutional in part), 114 U.S. 269 ... 796

Voiulit ». Wright (inspection laws— discrimination), 141 U.S. 62 944

Wabash, St Louis and Pacific R. Co. v. Illinois (State regulation of extra- state railway rates— void), 118 U.S. 557 516, 520, 856, 857, 904

Waldeni'. Skinner (jurisdiction— citizens of different states), 101 U.S. 577 ... 777

Walker r. New Mexico and S.P.R. Co. (trial by jury), 165 U.S. 593 810

Wall's Case (alien— disability), 6 Moo. P C. 216 600

Wallace and Co. Exp. (customs duties collection— resolution of Assembly),

13N.S.W.L.R 1 •; 859

Walling V. Michigan (State licenses to sell imported liquor), 116 U.S. 446

519, 846, 847, 856

TABLE OF CASES.

PAGE.

Want r. Moss (injunction -jurisdiction), 12 N.S.W.L.R. Eq, 101 783

Ward V. Marj'land (inter-state privileges and immunities), 12 Wall. (U.S.) 418 960

Ware r. Hylton (treaty - enforced by legislation), 3 Dall. (US.) 199 .^36

Waring v. Clarke (admiralty jurisdiction), 5 How. (U.S.) 441 ... ... ... 800

Waterhouse v. Gilbert (appeal — " final and conclusive" ), 15 Q.B.D. 569 ... 746

Wayman r. Southard (judicial power), 10 Wheat. (U.S.) 1 ... ... ... 719

Welton V. Missouri (State peddler tax — when invalid), 91 U.S. 275

515, 518, 520, 532-3, 847, 856, 857 Western Union Tel. Co. ?■. Alabama State Board (telegraphic mes.'>agcs —

inter-state commerce), 132 U.S. 472 ... ... ... ... . . 516,518,541

Western Union Tel. Co. v. Massachusetts (intcr-state commerce — State tax

on property), 125 U.S. 5.30 849

Western Union Tel. Co. r. Pendleton (telegraphic messages— inter-state),

122 U.S. 347 515,541

Western Union Tel. Co. v. Taggart (inter-state commerce— State tax on

property), 163 U.S. 1 849

Western Union Tel. Co. v. Texas, 105 U.S. 460 {see Telegraph Co. v. Texas)

West Ham Overseers v. lies (preamble), 8 A pp. Cas. 386 ... .. ... 284

Westminster Bank, Be (House of Lortls may submit questions to judges),

2 CI. and Fin. 191 766

Weston V. Charleston City (State tax on federal stock — void), 2 Pet (U.S.)

449 559, 949

We\-mouth Corporation v. Nugent (Crown prerogatives), 34 L.J. M.C. 81 ... 321

Wheaton r. Peters (no federal common law), 8 Pet (U.S.) 591 ... .. ... 593, 785

Wheeling Bridge Case, 18 How. (U.S ) 421 {see Pennsylvania r. Wheeling

Bridge) White's Bank r. Smith (regulation of ships — commerce), 7 Wall. (U.S.) 646

518, 540, 874

Whitney v. Robertson (treaty— law of the land), 124 US. 190 769

Wiggins Ferrv Co. r. E^ast St. Louis (ferries over navigable streams), 107

U.S. .365" ... 852,856

Willamette Iron Bridge Co. v. Hatch (river wholly within a State — State

and federal power), 125 U.S. 1 ... ... ... ... ... - ... 540,541

Willard r. Presbury (federal territory— improvements), 14 WalL (U.S.) 676... 659

V. Tayloe ("legal tender), 8 Wall. (U.S.) 557 575, 581

Williams »' Peyton (|X)wer to tax — means to enforce), 4 Wheat. (U.S.) 77 ... 668 Willson o. Blackbirfl Creek Marsh Co. (commerce — na^^gation — obstruction —

police power), 2 Pet. (U.S.) 245 ... 516, 525-6, 527, 531, 852, 885

Wilson r. Crossfield (fishery), 1 Times L.R. 601 569

Wilts and Berks Canal Co. i'. Swindon Waterworks Co. (riparian rights —

reasonable use), L. K 9 Ch. 451 892,894

Wind V. Her (State tax on imports -original package), 93 Iowa 316 ... ... 846

Windsor, Town of r. Commercial Bank of Windsor (Pro\incial tax on

Dominion notes), 3 R. and G. (Nova Scotia) 420 554

Winn V. Mossman (preamble), L R. 4 Exch. 292 ... ... ... ... 284

Winona and St. Peter Co v. Blake (railroads— State regulation), 94 U.S. 180 857

Wiscart y. Dauch^- (jurisdiction of federal courts), 3 Dall. (U.S.) 321 ... ... 738

Wisconsin v. Duluth (navigable rivers— federal authorit}' to improve), 96 U.S.

379 852,883

Wisconsin v. Pelican Ins. Co. (federal jurisdiction — suits bv States), 127 U.S.

265 ' ...518,775,777,778,963

Withers v. Buckle}- (navigable waters— shores and soil), 20 How. (U.S.) 84 .. 532, 970

Withipole's Case (indictment includes inquisition), Cro. Car. 134 808

Wong Yung Quy, Be (corpse not property), 6 Sawj'. (U.S.) 442 518 Woodrufi" V. Parham (imports and exports State tax on auction sales), 8

Wall. (U.S.) 123 ... 845,943

WooUey r. Ironstone Hill Lead Co. (appeal from State courts to Privy

Council), 1 V.L.R. Eq. 237 738

Worcester v. Georgia (national and fedei-al principles), 6 Pet. (U.S.) 515 ... 336

Works V Junction Railroad (bridges over navigable rivers), 5 McL. (U.S.) 425 541

Worms, Exp. (treaty— extradition), 221xiwer Can Jur. 109 ; 2Cartwright 315 770

Yarbrough, Ex parte (protection of federal voters), 110 U.S. 651 471

Yelverton r. Yelverton (divorc-e — domicile), 1 Sw. and Tr. 574 611

Yick Wo I'. Hopkins (discriminating legislation against particular races), 118

U.S 356 ... ... ... ... ... ... ... ... ... 622, 623

ZoUverein, The (British ship — laws), 1 Sw. Adm. 96 .. 355

^1^

By the QUEEN.

A PROCLAMATION.

YlC'TOKIA R.

XXTHFiKEAS by an Act of Parliament passed in the ^ Sixty-third and Sixty-fourth Years of Our Reign intituled, *'An Act to constitute the Commonwealth of Australia" it is enacted that it shall be lawful for the Queen, with tiie advice of the Privy Council, to declare by Proclamation, that, on and after a day therein appointed, not being later than One Year after the passing of this Act, the people <)f New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, ol Western Australia, shall be united in a Federal ConimoHwealth under the name of the Commonwealth of Australia.

And whereas We are satisfied that the |>eot»le of Western Australia have agreed thereto accordingly.

We therefore, by and with the advice of Our Privy Council, have thought fit to issue this Our Boyal Proclama- tion, and We do hereby declare that on and after the First day of January One thousand nine hundred and one, the people of New South Wales, Victoria, South Australia, Quee7island , Tasmania, and Western Australia shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia.

Given at Our Court at Balmoral this Seventeenth day of September, in the Year of our Lord One thousand nine hundred, and in the Sixty-fourth Year of Our Reign.

God Save the Queen.

ERRATA.

PAGE.

50, line 17. For " 30 Vic. c. 11, s. 38," read " 32 and 33 Vic. c. 11, s. 8 " 213, line 9, For " 10,000 " read " 80,000."

298, line 15 from bottom. For " 48 Vic. No. 3 " read " 48 and 49 Vic. c. 23." 318, line 11. For " (1640) 16 Char. I. c. 10" read " (1679) 31 Char. II. c. 2." 322, line 8. For " 3 and 4 Will. 4" " read 5 and 6 Will. IV." 548, line 3 from bottom. For " import " read " export." 949, line 23 from bottom. For " Bank Tax Cases," read " Van Allen v. Assessors "

ADDENDUM.

New Ministry in Victoria. — On the loth November, 1900, in consequence of a no-confidence vote by the newly-elected Legislative Assembly in Victoria. Mr. Allan McLean tendered the resignation of his Ministry (see p. .374, injra), which was accepted. Sir George Turner formed a new administration, consisting of the following members, who were sworn in on 19th November :- Premier, Treasurer, and Commissioner of Customs, the Right Hon. Sir George Turner, P.C., G.C.M.G. ; Attorney-General, the Hon. I. A. Isaacs ; Chief Secretary and Minister of Labour, the Hon. A. .J. Peacock ; Minister of Public W^orks and Railways, the Hon. W. A. Trenwith ; Minister of Agriculture, the Hon. J. Morrissey ; Minister of Lands, the Hon. D. J. Duggan ; Minister of Mines and Water Supply, the Hon. J. B. Burton ; Postmaster-General and Minister of Public Instruction, the Hon. W. Gurr ; Solicitor- General, the Hon. A. Wynne, M.L.C. ; Minister of Defence and Health, the Hon. W. McCuUoch, M.L.C. : Ministers without portfolio, the Hon. E. J. Crooke, M.L.C, the Hon. P. Phillips, M.L.C., the Hon. S. Gillott, M.L.A., the Hon. R. McGregor, M.L.A.

HISTORICAL INTRODUCTION.

P^RT I. ANCIENT COLONIES.

(1) HELLENIC CITY-STATES.

Colonies and Plantations. — The terms "Colouy" and ''Planta- tion " were originally applied to English settlements abroad, or small communities of English subjects established in foreign parts, princi- pally for the purpose of raising produce. They were never extended to English dominions in Europe, such as Dunkirk, Toulon, and Calais, whilst those places belonged to the kingdom, nor were they, nor are they at the present time used in reference to Jersey or Guernsey, or other islands in the English Channel. For some years the terms colony and plantation were used indiscriminately. In the reign of Charles 11. " Colony " came into general use, to denote the relation of dependence in which American Plantations stood to the Crown. A colony then came to mean a plantation which had a Governor and civil establishment subordinate to the mother country. In the statute 7 and 8 William III. c. 22, declaring void Colonial Laws repugnant to English Law applicable to the colonies, and in the Navigation Acts afterwards passed, the two names are used without distinction. — Petersdorff's Abridgment, vol. V., p. 540.

In connection with a new instrument of Government Avhich marks the transition from the colonial system planted in Australia over one hundred 3'ears ago to a new order of thing's, a higfher and more complex political organization, a larger measure of self-government, and a more matured social development, it will be fitting to draw attention to the origin and growth of British colonies, and to some of their leading characteristics and achievements, and to compare them with the colonies of antiquity with which they in some respects agree, but from which they in more respects differ. They agree in having, like the older types, sprung from a parent stock, but they differ materially in the circumstances and motives which led to their establishment, in their primary structure, and in their relations with the mother country, as well as in their career and progress.

Greek Colonies. — Various tribes and divisions, of which the ancient Hellenic race was composed, participated in the settlements known as Greek colonies. The causes which led to these migra- tions were the pressure of population on the means of subsistence within the narrow limits of crowded cities ; internal dissensions conse- 1

HISTORICAL INTRODUCTION.

quent on class domination and party faction ; and a love for maritime exploration and discovery.

Among the first recorded of these settlements were the Ionian colonies. After the death of Codrus (b.c, 1100, according to the early legends of Greek history), Ionian adventurers sailing eastward and northward from Attica, established themselves in that part of Asia Minor along the shores of the ^gean sea from Phocaea to Miletus. Twelve cities were built, the principal of which were Ephesus and Miletus. They were severally independent of the States from which their founders had emigrated, but they formed a mutual association for common purposes known as the Ionic Confederacy. From this new centre expeditions went forth and planted commercial emporiums on the shores of the Black Sea, including one from Miletus which established Sinope, the greatest and most important of the colonial stations fronting the Euxine. Trebezus (Trebizond) was afterwards settled from Sinope.

Whilst the lonians were thus engaged, another body of Greeks, ^olians, proceeding from Thessaly and Boeotia, founded ^olian colonies on the northern islands of the ^gean sea, and on the northern part of the Avestern coast of Asia Minor. They also were united in a confederacy of twelve cities, called the ^olian Con- federacy, the chief of which were Lesbos and Tenedos.

In like manner the Dorians, another Hellenic tribe, settled in the southern islands and in the southern part of the western coast of Asia Minor. Six of these cities formed themselves into the Dorian Confederacy. In 658 B.C., Greek emigrants from Megara established a colony at Byzantium, commanding an entrance to the Euxine, which grew into an important centre, and in after ages became Constanti- nople. The Dorians and other Greeks sailing along the Mediterranean westward and southward from their central home reached Sicily, Italy, Gaul (South France), and even Africa; planting in Sicily, Syracuse and Agrigentum, two of the most splendid cities of the ancient world; in the forked peninsula of Italy, cities such as Tarentuni, Sybaris, Croton, Metapontum, Ehegium, Cumje, and Neapolis (Naples), in which Greek civilization became so advanced and the colonists so numerous that Lower Italy was known as Grtecia Magna or Great Greece ; in the south of Gaul, Massilia (Marseilles), whicli for centuries was one of the most important commercial centres of the Meditei-ranean ; and on the northern shore of Africa, between the Nile and Carthage, Cyrene, occupying a fine maritime situation wliich developed into a city rivalling the Phoenician capital in wealth and splendour.

The very name " Apoikia," by which these primitive communities were known, indicated their true character and origin. A Greek colony was not a mere plantation retaining its connection with the parent state from which its pioneers had emigrated ; it was literally a going-away-from-home, a parting, a complete separation. These colonial groups went away from their old city-states, like swarms from old hives, to cluster in new hives, to cultivate new lands, to found new cities, to establish new centres of trade and commerce. Following, in their tiny ships, the ebbs and flows of the great tidal

ANCIENT COLONIES.

sea, they, for the most part, clung to its coastal regions. They explored what was to them a new world of strange waters, and here and there on the narrow fringes of the seaboard they made camps which grew into towns and bustling cities, pulsating with new life and new energy. The situations selected afforded convenient sites within communication, by sea, with their ancient seats, and at the same time they were accessible to an avenue of retreat from the invasions of barbarous hordes, should they emerge from the interior.

Greek colonization was not promoted by state-aid or state- patronage. It was in some instances prosecuted in spite of the opposition of Greek cities, from which the migrating swarms went forth. From small beginnings these insignificant groups, whilst pre- serving the laws, customs, and institutions of their mother-cities, which they regarded with respect and reverence, grew in power, influence, and importance, and became autonomous political com- munities. With one or two exceptions each of them enjoyed the unfettered right of self-government. Until they became subject to local despots, or were crushed by foreign conquest, the people of each colony exercised perfect freedom in the management of their own affairs ; they appointed their own leaders and magistrates, and, even in their foreign relations, they were independent of their mother-city ; they could declare war and make peace with her public enemies. In every respect, therefore, these small Greek societies were free and sovereign commonwealths, having the obligation to maintain that freedom and sovereignty against external attacks, by their own prowess and with their own resources. They owed no allegiance to any distant hereditary king, nor were they under subjection to any political state except their own. The mother-cities from which they had migrated regarded them as emancipated children over whom they exercised no direct authority or jurisdiction ; guaranteed them favours and assistance in times of difficulty and danger, and expected nothing in return except filial respect and gratitude.

In the course of time some of these Greek colonies equalled if they did not surpass the mother-cities in wealth, population, art, philosophy and poetry, and in all the achievements of culture and civilized life. The only ties tending to draw them together in sym- pathy were those of common language, common religion and common blood ; vital forces which seldom fail to yield tremendous results in the history of mankind. This community of sentiment led in some instances to something like a federal union between the original states and their colonial offshoots ; such as the defensive league between Imperial Athens and the powerful Ionian cities of the JEgean sea and Asian shore, known as the Confederation of Delos. — Adam Smith's Wealth of Nations, pp. 249, 252, 454. Conversations Lexicon, vol. VI., p. 768.

" The Greek colonist, citizen of a city, planted a city. Severed from his native city, severed perhaps by such a world of waters as that which parts Euboia from Sicily or by such a wider world of waters as parts Phokaia from Gaul, he could no longer remain a citizen of his own city ; he could no longer discharge the duties of citizenship on a distant spot ; he could no longer join in the debates

HISTORICAL INTRODUCTION

of the old agore ; he could no longer join in the worship of the old temple ; but he must still have some agore and some temple ; he must still have a city to dwell in, a city in which still to dwell the life of a free Greek, when he could no longer live that life in the city of his birth. So he planted a city, a free city, a city that knew no lord, that knew no ruling city, a city furnished from the first with all that was needed for the life of a Greek commonwealth, a city free and independent from its birth. And he dAvelled in the new city as he once dwelled in the old ; he gave himself to .make the new worthy of the old, the daughter worthy of the mother. But did he thereby deem that he had ceased to be a Greek ? Did he deem that he had severed himself from Greece ? Did he even deem that he had broken off from all duty and fellowship towards the city from whence he had set forth ? No ; dw^ell where he might, the Greek remained a Greek ; wherever he went he carried Hellas with him ; in Asia, in Libya, in Sicily, in Italy, in Gaul, far away by the pillars that guarded the mouth of Ocean, far away in the inmost recesses of the Inhospitable Sea, wherever he trod, a new Hellas, if we will, a Greater Hellas, sprang into being ; on those new shores of Hellas he kept his old Hellenic heart, his old Hellenic fellowship ; he still kept the tongue and customs of his folk ; he ciave to the gods of his folk ; he could go to the old land and consult their oracles, he could claim his place in their sacred games, as freely as if he still dwelled by the banks of the Spartan Eurotas or under the shadow of the holy rock of Athens. And how fared he towards the city of his birth, the metropolis, the mother-city of his new home, the birthplace and ci-adle of himself and his fellow-citizens of his new city ? Political tie none remained ; no such tie could remain among a system of cities. Parent and child were on the political side necessarily parted ; the colonist could exercise no political rights in the mother-city, nor did the mother-city put forward any claim to be lady and mistress of her distant daughter. Still the love, the reverence, due to a parent was never lacking. The tie of memory, the tie of kindred, the tie of religion, were themselves so strong that no tie of political allegiance was needed to make them stronger. The sacred fire on the hearth of the new city was kindled from the hearth of its mother; the parent was honoured with fitting honours, her gods were honoured with fitting offerings; her citizens were welcomed as elder brethren when they visited the younger city. And when the child itself became a parent, when the new city itself sent forth its colonies, the mother- city of all was prayed to share in the work and to send forth elder brethren of her own stock to be leaders in the enterprise of her children." — Freeman's Greater Greece and Greater Britain, pp. 26-29.

(2) ROMAN COLONIC.

Roman Colonies. — The Roman system of colonization differed materially from the autonomous settlements of the Greeks. A " Colony," as its derivation from the Latin " Colonia " denotes, was originally a plantation of coloni, or farmers, under the protection of the central government ; it was not an apoikia or a separate state.

ANCIENT COLONIES. 5

Roman colonies "svere established by the Roman government as a matter of national policy, and for political and military considerations. In the early history of the Republic, as the Romans gradually sub- jugated the various Italian races with whom they came into contact, lands of the conquered people were divided among Roman citizens, who were distributed in groups under military protection.

AVhen the Etruscans were finally vanquished, numerous military garrisons, which developed into colonies, were founded in various parts of Etruria. The national character of the surviving Etruscans was in that way gradually destroyed, and they were ultimately Romanised. Florentia, one of the towns of Etruria, thus became a leading Roman colony; its greatness under the name of Florence dates from the Middle Ages. So when the Samnites were finally conquered Samnium was laid waste and most of the inhabitants were sold into slavery ; their places were supplied by Roman citizens clamouring for land. After the conquest of Cis- Alpine Gaul, Yenetia became a Roman dominion ; military stations were formed, and the land was divided among the victors, as in the case of Etruria and Samnium. When Trans Alpine Gaul was brought under the Roman yoke it was divided into four provinces, in each of which was established a military colony. The name and identity of one of them, Lugdunum, situated at the confluence of the Rhone and Saone, still survives in the name of Lyons. Similarly the name and identity of another, Colonia Agrippina, on the Rhine, settled by the Emperor Claudian, is preserved in the modern city of Cologne.

For over three hundred years Britain, like Gaul, was subjected to the dominion of the Roman Empire. At the maturity of Roman occupation (304 A.D.) there were five divisions or provinces. Each of these provinces had a separate local ruler, subject to the Governor- General of Britain, who was appointed by the Emperor under the title of Prefect. This Prefect exercised all but sovereign authority, ha^'ing supreme military and judicial power. Under the Prefect was a Pro- curator or Qutestor, who levied taxes and administered the revenue. The chief military and civil power of the Roman Government was centralised in about one hundred cities ; the principal being London, Colchester, Bath, Gloucester, Chester, Lincoln, and Chesterfield. Most of these were built on lands which the Emperor had granted to the veterans of the conquering legions. The descendants of these warriors formed the greater part of the population of the cities. The ten largest cities enjoyed a special privilege, called the Jics Latii, an incomplete citizenship, which conferred on them the right to elect their own magistrates. The inferior ones, called Stipendiaries, were governed by ofiicers under the Prefect's authority, and paid tribute to the Emperor. — Cassell's History of England, Vol. L, p. 19.

HISTORICAL INTRODUCTION.

F-A.RT IT. MODERN COLONIZATION

(1) IN AMERICA, AFRICA AND ASIA.

Spanish and Portuguese Colonies. — It was a great day in the world's history when Christopher Columbus, a Genoese pilot, set sail from Spain with a small fleet of three vessels bound on that memor- able voyage which resulted in the discovery of America, and in the opening of new regions for the industrial activity and enterprise of civilized man. After years of endeavour he had convinced Ferdinand and Isabella of Spain that the realms of Indian wealth and treasure could be reached by sailing in the direction of the setting sun ; that, the earth being round, the countries of the east could be attained by sailing to the west, so that communication could be established over the whole world across the sublime highway of the ocean. Bold mariner was he, indeed, in that age, when the lamp of science burnt dimly, to gaze across the wild Avaves of the Atlantic, and, beyond its primeval darkness, to see the light of promise with its glimmering rays leading on to modern civilization. How transported with delight he was when, after tossing about in strange seas for twenty-one days, without sight of land, he saw grass floating on the waves, and birds appeared on the western horizon as the gentle messengers of a harbour of safety. It was on the night of the 12tli October, 1492, that Columbus from the deck of his vessel descried a dim light flickering across the waves ; and at 2 o'clock in the morning a cannon shot from the Pinta announced that a sailor had discovered land.

That light was a spark that has since illuminated the whole world, and the cannon shot will be heard echoing through all time. To Christopher Columbus is due the immortal honour of having discovered the continent of America. He was the first of a long line of maritime pioneers and discoverers who lifted the curtain of the trackless deep — who ploughed their way from sea to sea, from ocean to ocean, from continent to continent, until the great work of circumnavigating the globe, so daringly begun, was duly accomplished.

The second great voyage which largely assisted to expand the dominion of European civilization was that performed six years after the discovery of America, by Vasco da Gama, a Portuguese navigator. To that distinguished man was entrusted the execution of the project of sailing from Portugal to India round the continent of Africa. It may seem strange that both the expedition of Columbus and that of Vasco da Gama were launched for the purpose of reaching India. But the fact is that the nearest and safest route to the riches of Cathay and the trade of India was, to the commercial nations of the south- west of Europe, a problem of vital importance; they wished to com- pete with Venice and Genoa, which long enjoyed the monopoly of that trade by way of eastern caravan routes. Hence it was that the

MODERN COLONIZATION.

Portuguese were endeavouring to explore the western coast of Africa, with a view to reaching India by passing round its most southern promontory, many years before Cokimbus conceived the daring idea of sailing westward to India, in essaying which he was stopped by the Isthmus of Panama.

The Cape of Good Hope was discovered by Bartholomew Diaz in 1486. It was doubled by Vasco da Gama's fleet in November, 1497, and subsequently he arrived at Calicut, on the Malabar coast of India, the goal of his enterprise, where he established a trading station which marked the beginning of the European conquest of India. In comparing the achievements of Columbus and Da Gama as pioneers of oceanic exploration, it may be noted that whilst Columbus crossed a wild waste of waters, upon which man had never previously ventured, Da Gama, in circumnavigating Africa, followed the track of Pharoah Necho, an Egyptian king, whose ships had sailed round Africa more than 2,000 years before. But, for supreme grandeur, no exploit in the history of the human race is equal to the voyage of Fernando Magellan, a Portuguese mariner, who inaugurated an expedition which first sailed round the world, demonstrating beyond all doubt the rotundity of our planet, and leading the way to the discovery of new islands and a new continent in the Southern Hemi- sphere. In September of the year 1519 Magellan was entrusted by Charles Y. of Spain with the command of a fleet of five ships fitted out for the purpose of exploring the southern seas. Magellan succeeded in discovering the famous straits which bear his name, running between the southern headland of South America and Terra- del-Fuego; thence he passed into the broad expanse of the Pacific Ocean, to which he gave its present name. Continuing his voyage, he sailed on, and on, month after month, undergoing pi'ivations and encountering perils, until at last, in the year 1521, he arrived at the Philippine Islands, north of Australia, where he was killed in a skirmish with the natives. His vessel, conveying his records, charts and observations, was brought back to Spain by way of the Cape of Good Hope. The circumnavigation of the globe was thus completed after a three years' voyage of unparalleled difliculty and danger; the saddest event of the expedition being the loss of its intrepid com- mander before he had seen the accomplishment of his world-wide enterprise. It must be admitted that this voyage was the most triumphant in the whole record of navigation, ancient or modern. It was Magellan who burst through the gates of the American continent ; it was he who first navigated the majestic Pacific, with its numerous islands and its mighty highway from America to the Indian Ocean, preparing the way for much that was to follow in the fulness of time. Well has Dr. Draper written of Magellan — " He impressed his name on earth and sky ; on the straits connecting two oceans, and on clouds of starry worlds seen in the southern sky." — The Intellectual Development' of Europe, Vol. II., p. 169.

Pioneers of Modern Colonization. — Christopher Columbus, Vasco da Gama and Fernando Magellan were the first great pioneers of modern colonization to whom reference must necessarily be made in any account of the beginning and expansion of England's empire

HISTORICAL INTRODUCTION.

beyond the seas ; for, although theii- expeditions and discoveries were conducted in the interests and at the expense and direction o£ Spain and Portugal, the time came when England obtained possession of most of the countries which they added to the inheritance of civilized man. They prepared the way for Sir Francis Drake's circumnavigation of the earth in 1578, and for James Cook's voyage in 1769-70. The nation and the generation who sow the seed of progress do not always gather in the harvest, but sooner or later the human race, as a whole, enjoys and profits by what has been planted " with the blood and tears of a few." So it was in the case of those renowned navigators. Where now is the colonial empire of Spain ? Nothing remains; her provinces were lost in the hurricane of revolution and conquest. Where is now the colonial empire of Portugal ? Not an island of any consequence remains to speak of departed fame.

To England fell the greatest and richest share of the glorious result of those three great voyages which " broke the night of ages ; " which ushered in modern times with all their bustling activity ; which directed the course of civilization from the east to the west — from rivers such as the Nile, the Tiber, the Euphrates, the Danube and the Rhine, and from inland seas, such as the Black, the Baltic and the Mediterranean, to the broad Atlantic and the far-reaching stretches of the Pacific Ocean. From that time the nations of the Medi- terranean were destined no longer to monopolize the commerce of the world. Egypt ceased to be the avenue to India ; Europe was startled by the intelligence brought in quick succession from the new world, and an impetus of an unprecedented character was given to the spirit of adventure and discovery. Then began the mighty race for slices of the new world. England, of the sixteenth century, was not behindhand ; she now began to lead the vanguard of nations in that grand struggle. See Seeley's "Growth of British Policy."

In many respects the English at that time were peculiarly qualified for the work to be done. For over a thousand years the people of the island had been going through various stages of preparation and apprenticeship calculated to fit them for the arts of navigation and colonization. In the first place, England itself had been for many centuries a colony belonging to different and successive nations. The Phoenicians, the Romans, the Danes, the Saxons and the Normans, had, in successive periods, planted colonies in British soil, which left enduring traces in the country and in the character of the inhabitants. Then, again, the main element of the amalgamated

Population of Britain was composed of a sea-faring people, having abits and instincts which attached them to the sea and its associations. Under these cii'cumstances it is hardly surprising to see the English come to the front in this remarkable epoch of geo- graphical discovery and maritime enterprise.

North American Discoveries. — Four years after Columbus had discovered America, and whilst Vasco da Gama was preparing to circumnavigate Africa, John Cabot, a Venetian pilot, with his son, Sebastian, a native of Bristol, obtained from King Henry VII. letters patent authorizing them to proceed on a voyage of exploration towards the north-west, in order, if possible, to find, conquer and

MODERN COLONIZATION.

settle unknown lands for the English crown. The King supplied one ship, and the merchants of Bristol and London placed a few smaller ones at their disposal, and with this meagre fleet ihe Cabots, father and son, sailed forth on their dangerous enterprise. The result of this and succeeding voyages made by John and Sebastian Cabot were most momentous ; they laid the foundation of England's trans-Atlantic colonial empire. In June, 1497, they reached the coast of Newfound- land, or, as some think, of Labrador. Afterwards they sailed southwards along the eastern coast of the American continent as far as Cape Florida, near the Gulf of Mexico. They were the first Europeans who sighted and surveyed the coastline of the vast territory which was subsequently occupied by the thirteen original colonies, and which now belongs to the United States Republic. The discoveries of the Cabots gave England an international claim to the whole of North America, and that claim, although allowed to remain dormant for nearly a century, was eventually asserted in an emphatic and practical manner.

The Spanish devoted their energies and resources to the conquest of Central America, and a part of South America, together with the adjacent islands known as the West Indies, whilst the Portuguese took possession of Brazil ; but neither of these nations explored or asserted a right to North America. Whilst the Spaniards and Portu- guese were plundering and enslaving the defenceless natives of the south, committing unspeakable outrages, and spreading unutterable ruin wherever the lust of gold induced them to extend their devasta- ting sway, the English by slow and cautious steps explored the apparently poor and inhospitable coast of North America. Many disasters and failures delayed the work of settlement. For many years after the Cabots, expeditions were sent across the Atlantic by English enterprise, for the purpose of finding what Columbus failed to discover — a north-west passage to India. At last these attempts were for the time given up ; the route of Yasco da Gama round the Cape of Good Hope was resorted to, and trading factories were established on the shores of the Indian Peninsula, which were the feeble beginnings of our Indian empire.

First English Colonies in America. — After John and Sebastian Cabot, Sir Humphrey Gilbert and Sir Walter Raleigh were two of the most famous pioneers of English colonization in North America. Sir Humphrey Gilbert, an English navigator and maritime discoverer, obtained from Queen Elizabeth, in 1578, a patent empowering him ta discover and colonize any unsettled lands which he might reach. This was the first charter granted by an English monarch to found colonies. Two expressions from this remarkable instrument may be quoted : He was to take possession of " all remote and barbarous lands " and to govern them, subject to the proviso that " all who settled there should have and enjoy all the privileges of free citizens and natives of England." In his first voyage, in pursuance of this authority, he sailed for Newfoundland, but returned home unsuccess- ful. He sailed again in 1583, landed on the shores of Newfoundland, took possession of the harbour of St. Johns, and shortly afterwards lost his life in a storm whilst exploring the coast. In 1585 Sir Walter

10 HISTORICAL INTRODUCTION.

Raleigh, one of the most brilliant figures in the reign of Queen Elizabeth, promulgated a scheme for the settlement of those parts of North America not appropriated by Christian powers. Through his great influence with the Queen he obtained an extensive patent for that purpose, and by the assistance of wealthy friends and relatives two ships were fitted out for the expedition. It is interesting to observe that one of the clauses of Raleigh's first patent, like that of Sir Humphrey Gilbert, provided that the English subjects who accompanied him should have a guai'antee of the '' continuance and enjoyment of all the rights which they enjoyed at home." It was a maxim of the common law that, if an uninhabited country were dis- covered and peopled by English subjects, they were supposed to possess themselves of it for the benefit of their sovereign, and that such of the laws of England as were applicable and necessary to their situation and the conditions of an infant colony were immediately in force ; that wherever an Englishman went he carried with him as much of English law and liberty as the nature of his circumstances required. — Petersdorff's Abridgment, vol. Y., p. 540. Thus earl}^ was it recognised that Englishmen carried their political birthright with them over the broad surface of the earth ; that the charters of freedom for which their ancestors fought were not left behind, but accompanied them to their new homes beyond the sea. This was the fundamental principle of English colonization, and it presents a imarked contrast to the colonizing systems of Spain, Portugal and France.

In this expedition Sir Walter Raleigh founded a settlement on Roanoke Island, in what is now North Carolina. A few years pre- viously a party of French Huguenots had settled at Port Royal, in what is now South Carolina, and had built a fort which they called " Arx Carolina " in honour of Charles IX. of France. They had, however, been murdered by the Spaniards from the adjoining tei'ritory of Florida. Raleigh's settlement was not successful and was soon broken up. His vessels brought to England some natural productions which proved the great value of the resources of the country, and another expedition was sent out under the command of Sir Richard •Grenville, a kinsman of Sir Walter Raleigh. This was more success-, ful, and resulted in the foundation of the colony of Virginia, so named in honour of the Virgin Queen Elizabeth. It was the first and greatest of the thirteen colonies established under the protection of the English flag. It is said that to Sir Walter Raleigh's expedition is due the introduction of the potato and tobacco plant into Europe. In these ■early attempts at colonization failure and success were blended together, and it was not until about, the year 1606, in the reign of James I., that anything like safe and permanent settlement was •effected in these strange and distant regions.

England's struggle with Spain had been long and deadly, but it ended with the defeat of the Spanish Armada in the year 1588. England became mistress of the sea, having only the Dutch as powerful rivals ; and thus there were no longer serious dangers in •the way of maritime discovery and adventure.

The reign of the Stuarts, disastrous as it was to themselves,

MODERN COLONIZATION. 11

prolific as it was in civil war and revolution at home, was above all things distinguished by the growth and expansion of England's first colonial empire in Xorth America. Herein can be seen the vitality and energy of the people of whom we are the descendants, and whose political birthright we now enjoy with the fullest measure of freedom. During the tyrannical government of Charles I., the disorder and uncertainty of the Commonwealth under Cromwell, and the perse- cution and proscription of the Restoration under Charles II., thousands of Englishmen and Englishwomen fled from their land to seek for liberty and safety in the wilds of Xorth America, and these were the pioneers of that great development of emigration and colonization which paved the way for the establishment of a greater Britain in the new world. And here one general remark must be made as to the character of these momentous movements to which is mainly owing the stability and success of the early colonies of America. These colonies were founded by private enterprise, not with the assistance, but only with the official sanction of the Crown. This will be best understood by a brief reference to examples.

In the year 1606, the year in which Torres passed through the straits, which now bear iiis name, and sighted the Australian coast, two companies were formed for the purpose of colonizing America — the London Company and the Plymouth Company. To the London Company was assigned by King James I. South Virginia, which extended from Cape Fear to the Potomac River; to the Plymouth Company was granted Xorth Virginia, which extended from the Hudson River to Xewfoundland. The country between the Hudson and Potomac was declared neutral territory. This division of Virsrinia, Xorth and South, included nearly the whole of the eastern fringe of Xorth America, but that divisional nomenclature was not long maintained. The London Company was the first in the field, and began the work of colonization in a practical manner, though at first with limited success. It was followed by the Plymouth Company, which also proceeded to distribute grants of land to actual settlers. The title of each of these companies was a charter from the Crown. The charter of the Loudon Company contained provision for the creation of governing councils ; one in London, appointed by the King, having power to appoint a colonial council, endowed with the absolute power of Government. The soil was vested in the Company by grant from the Crown. There was no mention made of repre- sentative assemblies in either charter, but each contained a clause somewhat similar to that of Raleigh's first patent, to the effect that " all British subjects who shall go and inhabit within the said colony and plantation, and their children and posterity, which shall happen to be born within the limit thereof, shall have and enjoy all the liberties, franchises, and immunities of free denizens and natural subjects within any of our dominions, to all intents and purposes, as if they had been abiding and born within their own realms of England or in any of our other dominions." This contained the germ from which afterwards sprang the system of representative self-government in the American colonies. In none of the charters, with the exception of that of Jamaica, to which allusion will presently be made.

12 HISTORICAL INTRODUCTION

was there an express grant of representative government, but the right was asserted as inherent to and necessarily a part of those liberties, franchises, and immunities granted in the charters.

In 1607 Thomas Gates and Company sent out, under the leader- ship of Christopher Newport, three ships containing 105 emigrants, who were landed at Chesapeake Bay; and on the 13th May of that year the Commonwealth of Virginia was established by the building of Jamestown on the James River, which was so named in honour of the King. This party consisted of gentlemen of fortune, labourers, and other persons of no occupation, and without families, who were picked up in London. The friendly Indians sold them land and pro- visions, and they struggled along, clearing the wilderness and attempting to cultivate the soil. Owing to misgovernment and internal dissensions the infant colony was several times on the verge of starvation and dissolution. In 1609 the London Company super- seded Gates' Company in the management of the colony and sent out Captain John Smith, who by his prudence and good counsel saved the struggling community from destruction. It was next reinforced by fresh arrivals from England under the direction of Lord Delaware. By this time the permanent establishment of the new settlement was assured. Gradually a liberal element began to prevail in the manage- ment of the London Company, and in 1619 the first representative p,ssembly came into existence. In the quaint language of an old chi'onicle, "a House of Burgesses broke out in that year." The charter of James I. contained no provision for the creation of such an institution as "a House of Burgesses; " nevertheless that House was legally acknowledged by the Government of the mother country as being in strict accordance with the principles of Sir Walter Raleigh's patent, and with the general scope of the clause of the Company's charter.

In the same year which saw the forerunner and type of all American assemblies, convicts were sent out to the colonies from England, and negro slaves were introduced by the Dutch. The element of convictism and slavery did not spread to any very large extent in the early history of America, but they afterwards became the plague spot of England's colonial empire. The practice of negro slavery and the transportation of convicts was first introduced by the Portuguese and the Spaniards. And the system was too readily followed by other nations.

In 1624, the London Company surrendered its charter to the Crown, but the House of Burgesses elected by the people survived the surrender of the charter, and maintained the power of legislation and taxation, subject to the veto of the Governor. We have referred to the preliminary history of Virginia at some length, because it was the earliest settled, and the largest, richest, and most populous of all the original thirteen states. It was afEectionately called the " old Dominion," and also the "mother of Presidents," because four out of live Presidents who ruled the Republic up to the year 1824 were natives of Virginia. It was the birthplace of George Washington, Thomas Jefferson, Richard Henry Lee, and Patrick Henry, who became the leaders of the revolution.

MODERN COLONIZATION. 13

Before passing from Virginia, reference should be made to four other colonies adjacent to it which were carved out of the original grant of territory to the London Company. In 1623, Sir George Calvert, afterwards the first Lord Baltimore, received a grant of land forming part of Virginia from Charles I. for the purpose of forming a proprietary colony. It was called Maryland by way of compliment to Queen Henrietta Maria. The first Lord Baltimore died before the letters patent were sealed, but the second Lord Baltimore carried out the scheme in 1632. The Baltimores were Eoman Catholics, and Maryland was settled by Catholic gentry and others belonging to that Church, who were driven from England during the fierce persecutions of these times. Maryland became the "land of sanctuary ,'' and claimed the proud distinction of being a refuge for the toleration of all religious denominations. Its form of administration was by a Governor having a patent right to veto acts of the legislature, which consisted of an [Jpper House nominated by him, and a Lower House elected by the people. The colony, according to the patent, belonged to the proprietors, who nominated an administrative council and granted governmental privnleges, for which they received certain consideration.

In 1662 the southern part of Virginia was granted as a proprietary colony to Lord Clarendon and others by Chai'les II. under the name of " Carolina." Its early population consisted for the most part of emigrants from Virginia. The young colony obtained a representative assembly in 1667, but its form of government was similar to that of the proprietary colony of Maryland. However, in 1717 the pro- prietors surrendered their patent to the Crown, and Carolina became a royal colony by purchase. In 1729, Carolina was divided into two separate and independent districts. North and South Carolina, which afterwards became two of the most important states of the union.

Georgia, which was organised into a colony in 1732, was the fifth distinct settlement carved out of the Virginia foundation.

Passing now to the northern group of colonies which were formed out of the territory assigned to the Plymouth Company, we find a record of progress and cultivation of the soil proceeding in the teeth of trials and obstacles as extraordinary as those experienced in the history of Virginia and its offshoots in the south. Under the direction and with the license of the Plymouth Company, a settlement was, during the year 1620, formed at Massachusetts Bay by the famous and heroic " Pilgrim Fathers," who were compelled to leave England on account of the persecution to which they were subjected for their non-conformity to the Church of England. The sailed from South- ampton for America to the number of 102 persons, in the Mayfloicer, a little vessel of 160 tons burden, and landed on 21st December, 1620, at a place which they named New Plymouth, where they long had a desperate struggle for existence owing to the coldness of the climate, the poverty of their circumstances, and attacks by the Indians. They were afterwards joined by a society of Puritans, who also sought refuge there from the ecclesiastical policy of Charles I. Massachusetts became the centre and leader of four important colonies which in a few years sprang into existence in the North, between the Hudson

U HISTOEICAL INTRODUCTION.

River and Newfoundland. They were known as the New England Colonies, New England being the designation applied to the whole of that region by Captain John Smith, who explored the coast in the year 1614.

Settlers went to the south of Massachusetts, and formed the colonies of Connecticut and Rhode Island, which received separate charters from the Crown. A fishing village to the north of Massa- chusetts, established under a grant of land to one John Mason, became the nucleus of the colony of New Hampshire.

Such were the four important plantations formed out of New Eng- land, the territory of the Plymouth Company. The Plymouth Company finally surrendered its charter, and Massachusetts received an inde- pendent charter from Charles I. in 1629, whilst Connecticut and Rhode Island received separate charters from Charles II. in 1662. These were the famous New England colonies, in which there was a larger measure of political freedom and local self-government than in any of the North American plantations. They were chartered colonies, in which the sovereign parted with his rights and preroga- tives either wholly or in part to the settlers, who elected their own representative assemblies, having the power of legislation without appeal to the Crown, there being no royal governor or royal agent within the colonies. They elected their own governors, as well as their Parliamentary representatives in the Upper and Lower Houses. The Home Government did not interfere with them in any way. They were, in fact, simple democracies, if not veritable republics, the highest achievement in the way of political organisation, and the nearest approach to independent states attained by any of the thirteen colonies before the revolution. The only terms and conditions under which these colonies held their charters of colonization were, first, allegiance to the Crown, and, secondly, that one-fifth of the gold and silver found within their jurisdiction should be paid to the King. In the year 1665, only 40 years after the foundation of Massachusetts, and 100 years before the Declaration of Independence, we find the people of that settlement asserting that they did not regard themselves as subject to England, and maintaining that as long as they paid one- fifth of all the gold and silver according to the terms of their charter " they were not obliged to the king, but by civility." These advanced ideas of colonial independence and autonomy received a startling development and a determined assertion during the subsequent con- flict with England, for it was in Massachusetts that the battles of Lexington and Bunker's Hill were fought.

We have now referred to two groups of colonies, that of Virginia and that of Massachusetts, which are described as the original foun- dations of British colonization in North America. There remains a third group, which grew up in the neutral zone between the Potomac and the Hudson rivers, between Virginia and New England. Whilst settlement was proceeding in the vast country to the north and the south, this central territory was explored by the Dutch, who established a trading station at Manhattan, the site of the present city of New York. The Dutch Government assigned this locality to the Dutch West India Company. It was named New Netherlands, and the town

MODERN COLONIZATION. 15

which sprang into existence at the mouth of the Hudson, a river discovered by Henry Hudson, an Englishman in the service of the Dutch, was called New Amsterdam. The Dutch, however, had a very precarious title and tenure of this country, and they were soon cleared out of North America. After the restoration of Charles II. in 1660, England and Holland went to war, and a fatal blow was struck at the colonial possessions of the Dutch. An English fleet under Colonel Nichols proceeded to New Amsterdam and conquered it, driving out the Dutch, and converting it into an English settle- ment. It was granted as a proprietary colony by Charles II. to his brother, the Duke of York, after whom it received the name of New York. The Duke granted a part of the territory of New York to Lord John Berkeley and Sir George Carteret, who formed out of it the colony of New Jersey.

In 1681, the square tract of country to the west of New Jersey was granted by Charles II. to William Penn, the celebrated English Quaker and philanthropist, in satisfaction of a monetary claim against the Crown. Here arose another proprietary colony under the never- to-be-forgotten name of Pennsylvania. Penn had been unjustly persecuted for his religious faith ; and his great desire was to establish a home for himself and his co-religionists in the distant wilderness of the west where they might enjoy religious and political liberty ; where they might preach and practice according to their convictions in peace and quietness. Penn planned and named the great city of Philadelphia, and framed a liberal constitution for the young settlement, which became what Maryland was to the Catholics, and New England to the Puritans — a refuge and a sanctuary for the persecuted brethren, hunted out of their native land. Penn also- purchased from the Duke of York a small strip of New York territory which was added to Pennsylvania until the revolution, w^hen it was erected into a separate State called Delaware.

Classification of the Original Colonies. — Having sketched the thirteen original provinces of North America we are now in a position to consider generally their peculiar distribution and classification. First, as regards their location ; the southern group consisted of five — Virginia, Maryland, North Carolina, South Carolina and Georgia ; the northern group consisted of four — Massachusetts, New Hampshire, Connecticut and Rhode Island ; the central group consisted of four — New York, New Jersey, Pennsylvania and Delaware.

The political constitutions, or forms of government of these colonies comprised three classes. First came the royalist colony of Virginia, which was always subject to the influence of the Crown more than in any other, even from the first, when the Executive Government was vested in a prerogative-created Council. Virginia became a thoroughly royalist colony in 1620, when the London Company decided to surrender its charter to the Crown. So New York, which began as a proprietary colony, was converted into a royalist colony when its proprietor, the Duke of York, became King as James II. Virginia may be regarded as the type and model of modern colonies, in which representative and responsible government

16 HISTORICAL INTRODUCTION.

is the prevailing system, with a Governor appointed by the Crown as the agent of the sovereign to watch imperial interests.

The proprietary colonies were Maryland, New Hampshire, Penn- sylvania, Delaware, Carolina, New Jersey, Georgia, and, in its early career, New York. In this class of colonies the soil Avas granted to and vested in certain proprietors or companies, who exercised the governmental powers which, in royalist colonies, were enjoyed by the king; they appointed administrative Councils to conduct public business; and sometimes they nominated their Governors, who had by charter the right of veto on the legislation of the colonial assemblies. This plan of colonization, which may be compared to that adopted by the East India Company, was found not to work satisfactorily as the population increased, and as conflicts between private and public interests arose. In time the proprietors became tired of continual quarrels and dissensions with the colonists, and one by one they either surrendered or lost their charters, until by degrees all the colonies assumed the royalist form of government, with the, exception of two. The chartered, colonies were Massachusetts, Connecticut and Rhode Island, in which, by their original title deeds from the Crown, the people had the right of choosing their own Governors, their own magistrates, and their own representatives, to make, interpret, and administer their own laws. They could repeal and abrogate the common law of England, except the general law of allegiance and dependence, without the danger of a veto by the Home Government. They could also repeal and abrogate the statute law of England, except such Acts as were expressly applicable to the whole empire. Massachusetts, however, lost its charter in consequence of proceedings taken against it in England by Charles II. After that it became a quasi-royalist colony. At the time of the revolution in 1770, Con- necticut and Rhode Island were the only chartered colonies. It may be observed that the chartered colonies had a much larger instalment of constitutional liberty and local independence than any existing dependency of the British Crown.

Speaking generally of this survey of the political organization of the early North-American settlements, it is to be remarked that in their matured history they had local autonomy, self-government, self- taxation, and political equality, and that there was no State Church and no official aristocracy to become an incubus or a source of strife and bitterness. The transplanted institutions and franchises of the old country took root and flourished in the new country under the guidance and protection of bold and hardy bands of pioneers, who laid the foundations of a mighty Anglo-Saxon empire along the coast of the Atlantic. They carried with them the traditions and charters of their ancestors ; Magna Charta, the Petition of Rights and the Bill of Rights formed a part of their political inheritance as much as those muniments of title were the birthright of those of their fellow countrymen whom they left behind them.

We are now in a position to notice the truth and importance of the statement with which this account of the American colonies was introduced. They were established not by Government agency, assistance or direction, but by private adventurers, who left their

MODERN COLONIZATION. 17

native land in search of that freedom denied them at home. The Anglican Cavaliers of Virginia, the Puritans of New England, the Quakers of Pennsylvania and the Catholics of Maryland emigrated from the land of their forefathers, and fought their way in the waste wilderness of the new world in order that they might escape political proscription and religious persecution ; that they might establish hearths, homes and hamlets where they would be far away from tyranny, spoliation and martyrdom. In other words, these colonies were places of refuge from the fierce political and ecclesi- astical domination which prevailed in England in the seventeenth century, during the reigns of James I. and Charles I., the Protect- orate, and the Restoration under Charles II. and James II.

West Indian Colonies. — Leaving the thirteen provinces of the mainland, let us now glance at the progress of English colonization in other parts of the globe during the later half of the seventeenth century. Barbadoes is the oldest discovered British colony in the West Indies. It was taken possession of in 1605, when a party of roving Englishmen planted a cross on the island, and inscribed the words "James, King of England;" but no actual settlement was effected on it until 1624, when a patent for the island was granted to the Earl of Carlisle, as sole proprietor. A large number of royalists emigrated to Barbadoes during the civil war between Charles I. and his Parliament, and it became a prosperous and populous sugar- producing colony. Bermuda, another of the earliest West India plantations, was colonized from Virginia and England shortly after 1609. Jamaica, the largest and wealthiest of our West Indian pos- sessions, was taken from the Dutch by an expedition sent out by Oliver Cromwell during his protectorate in the year 1655. Charles II., after the restoration of 1660, sent a Governor to Jamaica, and provided for the creation of an elective Council to legislate for the colony. This has been described as the first representative colonial Constitution granted by the Crown of England to any of its posses- sions and plantations abroad; for it will be remembered that there was no express grant of elective assemblies by the Crown to any of the American colonies. In the eighteenth century Jamaica became the greatest sugar-producing country in the world, but it afterwards declined through the exhaustion of the soil and the competition of new sugar countries.

Canadian Colonies. — Glancing northward of the New England colonies, we come to Newfoundland, which was discovered by Cabot in 1497 ; but England had a very doubtful title and precarious possession of that territory up to the end of the sixteenth century, as it was claimed by powerful and persistent French rivals. Newfound- land was not permanently settled by English emigrants until 1624, fourteen years after the planting of Bermuda. Though it was not that part of the American soil which was first settled from England, Newfoundland claims to be the earliest of existing British colonies from the fact that it was first discovered ; and in the Colonial Confer- ence held in London, in 1887, the representatives of Newfoundland were held entitled to the precedence attached to seniority.

At the time when Newfoundland was first colonized. Nova Scotia,

18 HISTORICAL INTRODUCTION.

New Brunswick and Canada belonged to France by priority of occu- pation. Although the coast of Canada was discovered by Sebastian Cabot in 1497, its interior was not explored by Europeans until 1541, when Jacques Cartier, a French navigator, sailed up that great arm of the sea which penetrates into the lake country, to which he gave the name of the River St. Lawrence. Jacques Cartier founded the first settlement at St. Croix's Harbour, but little progress was made for nearly 100 years. In 1603, Samuel Champlain, a French naval officer and marine explorer, was commissioned to initiate colonizing establish- ments in the New World, and he is justly celebrated as the pioneer of French exploration in North America. In his first voyage Champlain ascended the St. Lawrence to the part where Jacques Cartier had been stopped. In his second voyage he visited the coast of Nova Scotia. In his third expedition, in 1608, he fixed the site of the town of Quebec on the heights of Abraham, overlooking the St. Lawrence, and he also ventured as far as Lake Ontario and Lake Champlain, to which he gave his name. Quebec was founded and French settle- ment began in Canada a few years before the voyage of the Mayflower, The French possessions were gradually extended westward and south- ward from the St. Lawrence to the Mississippi, and down that river to its mouth. The whole of the country at the back or westward of the thirteen states of America, the Hinterland, including the valley of Ohio and all Canada, was in the beginning of the eighteenth century claimed by France, which contended that the Alleghanies were the western limits of the British dominions.

British Possessions in India. — Before proceeding to show how France lost that vast colonial empire, we may draw attention to the march of British influence and the planting of British trading stations in Africa and Asia. After many fruitless attempts to find a north- west passage to East India, English merchants, traders and adven- turers adopted the route discovered by Vasco da Gama, and sent their vessels to India by the Cape of Good Hope. In 1585, Queen Elizabeth granted a patent to a company to trade to Gambia, on the West Coast of Africa, but no settlement of any consequence was effected in that region until 1625. In its subsequent history Gambia became a notorious centre of the slave trade.

In December, 1600, Queen Elizabeth granted a charter to a com- pany formed for the purpose of carrying on a trade with countries beyond the Cape and the Straits of Magellan. This company, which was the beginning of the famous East India Company, established a few trading factories in India, but their commerce was for many years very meagre. By the end of the eighteenth century the progress of the East India Company in the Peninsula of Hindostan had not advanced beyond the factory stage. The Company were simply leaseholders under the great Indian Princes, by whose leave they established trading stations in various localities along the sea coast. In the struggle for commercial ascendancy the East Indian Company had to contend with powerful rivalry from the French and the Dutch. But the Company, which was incorporated by Royal Charter and vested with sovereign powers by the Crown, ultimately became master of the whole of India. The history of its struggles and final triumph

MODERN COLONIZATION. 19

in laying the foundation of the British Empire in India is one of the most romantic and extraordinary in the whole record of colonization and conquest. These momentous events must be briefly summarised,

Madras, the present capital of the presidency of that name, situated on the Coromandel (south-east) coast, was founded in 1639 by the Company, who obtained from the Rajah of Chandgerry a grant of a piece of land for the erection of a town and fort. Fort St. George, built in this district, was the first place where the British obtained a permanent footing. Madras soon grew into a flourishing city and became the central station of the Company along the Coromandel Coast.

Bombay is, next to Madras, the oldest British possession in India. It was granted to the Portuguese by an Indian chief in 1530, ceded by Portugal to England in 1661, and transferred to the East Indian Company by King Charles II. in 1668.

The first factory established by the Company in Bengal was built on the HoogJy in 1664. The Company's representative, Job Charnock, was driven thence in 1686, and in 1690 he founded another settlement on the Hoogly, which expanded into the town of Calcutta. The site of the settlement was granted to the Company by the Nabob of Bengal, and the grant was confirmed by the Emperor Aurengzebe, the last of the Moguls. Fort William was built at Calcutta in 1699, and it was so named after William III.

Such were the early and humble beginnings of the British East India Company. After the death of Aurengzebe, in 1 707, the native princes who owed feudal allegiance to the Mogul Empire began to quarrel among themselves, and the French and English interfered to quell the disturbances. It was then evident that the political organization of India was thoroughly rotten, and that only a strong arm was required to conquer and possess the whole country, and reduce the native princes to subjection. Then began the great con- test between the French and British in India for the ascendancy and empire. At first the French maintained their superiority, but in the end they were defeated and driven out of India by the Company's forces, and the victory of Lord Clive at the Battle of Plassy on 26th June, 1756, established the exclusive sovereignty and supremacy of the British in India.

South African Colonies. — The Cape of Good Hope was first discovered in modern times by Bartholomew Diaz in the year 1486-7. The heavy seas which rolled along the coast prevented him from landing, and hence he named it the ''Cabo doz tormentos," the "Cape of Storms," but King John II. of Portugal altered the name to " Cabo da Bona Esperanza," the Cape of Good Hope. Yasco da Gama doubled the Cape a few years afterwards on his voyage to India. The Portu- guese, however, never formed any permanent establishment there. The Dutch took possession of it in 1650, and it became a powerful station for them in their journeys to and from their trading factories in India and Batavia. It was captured by the British in 1795, was restored to Holland at the Peace of Amiens in 1802, and was again captured in 1806. At the Congress of Vienna, in August, 1814, the Dutch colonies at the Cape of Good Hope, and in South America,

-20 HISTORICAL INTRODUCTION.

were ceded by the Netherlands Government to Great Britain, six millions sterling being paid as part consideration for the transfer. On 11th March, 1853, Cape Colony was granted a Representative Legislature, composed of two elective chambers, followed in 1872 by the concession of Responsible Government. Between 1861 and 1870, British Kaffraria was added to the colony, and in 1880 Fingoland and Griqualand West were similarly incorporated. In 1894 and 1895, West Pondoland and British Bechuanaland became part of the same growing Dominion. Dutch farmers or Boers, who left the colony shortly after 1835, established the Republics known as the Orange Free State and the Transvaal.

In May, 1843, Natal, where the Boers were prevented from forming a republic, was proclaimed a British settlement and remained a part of Cape Colony until 1856, when it became a separate colony under a Royal Charter, authorized by statute, with a Governor and a Legislative Council partly elective and partly nominated. In 1 893, a new Constitution, embodying a bi-cameral legislature and accompanied by Responsible Government, was granted. In 1897, Zululaud was made a province of Natal.

Through the enterprising operations of the British South Africa Company, led by Mr. Cecil Rhodes, the vast regions south of the Zambesi, known as Southern Rhodesia, formerly Mashonaland and Matabeleland, and north of the Zambesi known as Northern Rhodesia, including Nyassaland, have been, since 1888, added to the Empire. They are destined in course of time to be partitioned into a group of self-governing colonies.

Conquest op Canada. — From this survey of the progress of the British flag in Asia and Africa, we return to our review of the march of events in the New World during the eighteenth century. The Seven Years War with France, which terminated in the Peace of Paris, 1762, left Great Britain the first State in the world, with the equivocal reputation of the " Tyrant of the Seas." It was in this war that she completely established her supremacy on the ocean, which she first began to assert upon the defeat of the Spanish Armada. It was in this war, so vigorously prosecuted by the first William Pitt, after- wards Lord Chatham, that England obtained possession of the whole of North America, and drove the French out of Canada as they had been driven out of India. The story of the invasion of Quebec by a British expedition sent up the St. Lawrence under the command of General Wolfe, the scaling of the Heights of Abraham by our troops in the dead of night, the fierce battle which followed on the plateau, the gallant defence of the French under General Montcalm, the victory of the attacking party, and the death of both noble and heroic commanders in the midst of the fight, is one of the most thrilling in the whole range of naval and military history. This event was followed by the surrender of all Canada to the British, and the French power in that quarter of the globe was thus absolutely annihilated. But France had her revenge on Great Britain at a later date, when she assisted the American colonies in their revolt against the mother country.

MODERN COLONIZATION. 21

Loss OF THE American Colonies. — To those coloniee we must now once more refer^ and see how it came about that Britain lost the brightest jeweJ in the crown of a thousand years. During the first half of the eighteenth century the American colonies along the eastern coast of what is now the territory of the United States made enormous progress in settlement and internal prosperity. Neglected and uncared for in the early years of struggle, they sprang into importance and commanded attention from the people and govern- ment of England when their trade increased and their resources were developed. Whilst they enjoyed the amplest measure of local autonomy and local self-government, there was one serious exception and limitation to their legislative power. The Home Government claimed the right of regulating their external trade and commerce. Their export and imr»ort trade was watched with jealousy, and hedged about with hampering restrictions. They could not amend or repeal the slightest fiscal regulations, however obnoxious or oppressive. Apart from this, they had absolute freedom and independence ; but in matters of trade, the British Parliament asserted its supremacy. The Navigation Laws passed during the Commonwealth under Cromwell, and mainly directed against the Dutch, with a view to ruin Dutch commerce, and the Dutch mercantile marine, were the basis of the colonial policy which subsequently pressed so heavily on the colonies. The main provisions of these laws were that no commodities of Asia, Africa, or America could be imported into Great Britain or her colonies except in British ships. This restricted the markets of the colonies, as they could not trade directly with other nations. On the other hand, Great Britain imposed high protective duties on the goods of foreign countries in favour of her colonies. Then there was a restriction on the manufacture of their raw products by the colonies and on the direct importation of the goods of foreign countries. This constituted what is called the old " colonial system," which was at the root of the quarrel and the war which led to American separation.

We are now brought down to the reign of George III., a period well described as " the most eventful in the history of the human race," marked by two thrilling tragedies — the War of American Inde- pendence and the French Revolution. It was in the year 1764, that George Grenville, the Chancellor of the Exchequer, nicknamed " The Gentle Shepherd," induced the House of Commons to take the fatal step of attempting to draw a revenue from America by the taxation of the colonies. By the Stamp Act, 5 Geo. III. c. 12, he secured the imposition of duties on certain commodities imported into America from other European colonies, and also stamp duties similar to those contained in our own Stamp Acts. This was a violation of the funda- mental principle of Constitutional Government — that there should be " no taxation without representation."

The news was received in America with indignation, and with a stern determination to resist. Virgfinia took the lead in orsranizinsr

-rrr

confederate resistance. In the House of Burgesses at Williamsburg, Patrick Henry spoke against the Stamp Act with burning eloquence. " Cjesar had his Brutus,'^ he cried, "Charles I. had his Oliver Crom- well, and George III. " "Treason! Treason!" interposed the

22 HISTORICAL INTRODUCTION.

Speaker. "And George III. may profit by their example," replied Patrick Henry. "The torch of confederate opposition 'was carried through every colony like a fiery cross." — Casseirs History of Eng- land, vol. v., pp. 58-71.

In October, 1765, the first Congress of Delegates was held in New York, at which resolutions were adopted, denying the right of the mother-country to tax the colonies without representation. The Stamp Act was repealed in the following yeai', by the Act 6 Geo. III. c. 11, but the British Parliament carefully avoided any appearance of a surrender of its rights. Indeed, it passed a Declaratory Act (6 Geo. III. c. 12) affirming the subordination of the colonies and the supreme authority of the Crown and Parliament of Great Britain. The mad policy inaugurated by George Grenville was followed, in 1767, by his successor, Charles Townshend, who as Chancellor of the Exchequer proposed the reduction of the Land Tax to relieve the country gentlemen, and, in order to make up the resulting deficiency in the revenue, determined to impose new taxes on goods imported into America, including tea. This scheme was carried in the Commons with the utmost indifference, and with hardly any debate. These Customs duties rekindled the fires of revolution in the colonies. The Republican party increased in power and influence. Non-importation societies were formed. Resistance and rebellion were openly advo- cated. The storm gathered in every quarter, and at last broke out in the seizure and destruction of several cargoes of dutiable tea in Boston Harbour. The Declaration of Independence was signed by the representatives of the thirteen colonies on the 4th July, 1776. The die was cast, and the great American catastrophe was brought about by the ruinous policy of " an infatuated King, a stone-blind Cabinet and a corrupt Parliament." The battle of Bunker's Hill, the surrender of General Burgoyne's army at Saratoga, the surrender of Lord Cornwallis' army at Yorktown, the mismanagement of British generals, the bravery of British soldiers, the pluck and patriotism of the colonial forces under George Washington, the recognition of the Independence of America in 1783, and the adoption of the federal constitution in 1787, are stirring events which can be only alluded to here for the purpose of urging a closer study. — Cassell's History of England, Vol. V., pp. 71-100.

Britain's Second Colonial Empire. — During one of the exciting debates which took place in the British Parliament on the subject of the American War, Lord Shelburne exclaimed, " When the Inde- pendence of America is admitted, the sun of England will have set for ever." That prediction was doomed to be falsified. No doubt the loss of her American colonies was a fearful blow to the Britain of 1783. But the world was wide, and colonization was still young. Canada, a vast tract of country extending from the Atlantic to the Pacific Ocean, still belonged to Britain. Many loyalists fled from the southern colonies during the revolutionary wars and commenced the foundation of new settlements in Canada, which promised to be as great in wealth and population as some of the colonies that were lost.

In 1791, by the Act 31 Geo. III. c. 31, Canada was divided into two provinces, Upper Canada, afterwards Ontario, and Lower Canada,

MODERN COLOXIZATION. 23

afterwards Quebec. In each province representative institutions were established, but the Executive was vested exclusively in the Crown. This system lasted until 1840, when the Canada Union Act, 3 and 4 Vict. c. 35, was passed. (R. R. Garran, The Coming Common- wealth, p. 81.) Under this Act the two provinces were united in one Constitution. A new Parliament, consisting of a Legislative Council, nominated by the Crown, and a Legislative Assembly, elected by the qualified inhabitants, coupled with Responsible Government, was constituted for the United Provinces. The new machinery of govern- ment was brought into operation under the Governor-Generalship of Mr. C. Powlett Thompson (afterwards Lord Sydenham) on 30th June, 1841. By the British North America Act, 1867 (30 and 31 Vict.c. 3) the two Canadas, Nova Scotia and Xew Brunswick, were federally united in one Dominion by the name of Canada. The new Constitu- tion was proclaimed on the 1st July, 1867, Lord Monck being Governor-General. The new province of Manitoba joined the Union in 1870, British Columbia and Vancouver Island in 1871, and Prince Edward Island in 1873. Newfoundland is the only British colony in North America which has not joined the Dominion.

The southern hemisphere was destined to present to Great Britain a new Colonial Empire to replace the one that was lost. The same year, during which the Americans were welded " into a more perfect union" by their federal constitution of 1787, saw Captain Arthur Phillip, with the " first fleet," on his way to the Southern Ocean in order to establish a settlement on the eastern shores of Australia, which had just been discovered and explored by Captain Cook.

(2) IN AUSTRALASIA.

From Magellan to Cook. — No one man, no one nation, can exclusively claim the honour of having discovered Australia. Justice demands the acknowledgment that many brave mariners and the Governments of several pioneering and exploring countries assisted in the gradual unfolding of the situation and outlines of the great con- tinent. See Barton, ''History of New South Wales," Vol. I., pp. 25-39. In his interesting work, " The Discovery of Australia " (1895) Mr. George CoUingridge (Sydney) propounds the thesis that either Spaniards or Portuguese discovered and charted the continent as early as 1508. He publishes a copy of what purports to be a French map of the world by Oronce Fine, dated 1531, in which "Terra Australis " is represented as forming part of an extensive ant-arctic land, and another, dated 1546, in which it is described as Java-la- Grande, with a small channel dividing it from the true Java. In an article in the Geographical Journal, October, 1899, Mr. George Heawood expresses the opinion that there is no authentic evidence that Australia was discovered before 1606. A number of events and incidents have, however, been commonly associated with the history of Australian discovery prior to 1606 ; these cannot be passed over or disregarded ; they may be here mentioned with the observation that the evidence on which thev are based is vagme.

24 HISTORICAL INTRODUCTION.

It is said by some writers that in 1527 a Portuguese mariner named Menezis penetrated the Southern Ocean and touched at a group of rocky islands to which he gave the name of Abrolhos, and which may now be seen marked on the map, lying to the westward of Champion Bay, Western Australia. (Australian Hand Book, 1897, p. 363.) From maps and documents in the British Museum and the War Office of Paris, it would appear that a Provencal navigator, named Gillaume le Testu, a native of the French city of Grasse, dis- covered some portion of the Australian continent in the year 1531. Early in the year 1542 an expedition was despatched from Spain under the command of Luis Lopez do Yillalobos to follow up the voyage of Magellan in the Pacific Ocean. He took possession of the Philippines for Spain, and coasted along a large island to which he gave the 7iame of New Guinea, and which was then thought to be a part of the Great Unknown Southern Land, which Ptolemy, the geographer, supposed to exist south of the Indian Ocean. The next record is that in 1598, a Portuguese mariner named Houtman reached the Abrolhos, with which his name became associated. In 1605, Pedro de Quiros was despatched by the Court of Spain to the South Sea in command of a fleet of three vessels. On April 20th, 1606, he discovered one of the islands of the New Hebrides, which he believed formed part of the Southern Continent, and to which he gave the name of " La Austrialia del Espiritu Santo." In a memorial to Philip III. of Spain (the head of the house of Austria) de Quiros explained that he had named it " for the happy memory of your Majesty and for the sake of the name of Austria, because on your bii'thday I took possession of it." — Collingridge, Discovery of Aus- tralia, p. 248. One of his ships, commanded by Luis Vaez de Torres, became separated from the rest, and sailing westward he saw land which he believed to be the eastern extremity of New Guinea. He skirted along its southern coast and saw land to the south as he pro- ceeded westward and passed through those straits which now bear his name. Torres was probably the European who first caught sight of the continent, afterwards to be known as Australia. The stories with respect to Menezis and Houtman are unsatisfactory. — Story of Geographical Discovery, Joseph Jacobs (1899), p. 158.

Other Avriters have, however, claimed for Dutch mariners the credit of being the first Europeans to sail in Australian waters. Wliilst the Spaniards and Portuguese were engaged in exploring the South Seas the Dutch were not idle. From Batavia, the central station of their Indian trade, they sent out ships in search of islands and commerce. On 18th November, 1605, the Dutch despatched the ship Duyfhen (Dove) from Bantam in Java, to explore New Guinea. It is claimed for the Duyfhen that she skirted the west and south coast of New Guinea for nearly one thousand miles, sighted Cape York, touched the eastern shore of the great indentation, afterwards known as Carpentaria; and that some of her crew landed on the shores of the Gulf and were killed by the natives. " The exact dates of the respective discoveries of Torres and the commander of the Duyfhen cannot now be ascertained; but as the Dutch vessel had arrived in the island of Banda, on her return to Bantam, in the month

MO])ERN COLONIZATION. 25

of June, 1606, while the letter of Torres, communicating an account of his vovage to the Spanish Admiralty, is dated at Manilla, in the month of August following, Captain Flinders conjectures, with everj appearance of probability, that the honour of the discovery of Australia is due to the Dutch, and that it must have taken place in the month of March, 1606, a few months before the discovery of Torres."— Lang's History of New South Wales (1875), p. 3.

Eeferring to the conflicting claims for the honour of the dis- covery of Australia, Dr. Lang wrote : — ^' Whether these allegations, however, are well founded or not, we have to console ourselves, as Britons, with the comfortable reflection that, while neither the French nor the Dutch, neither the Spaniard nor the Portuguese, ever made any account of their alleged discoveries, we, the only practical people in the lot, have already, by following and settling in the track of our own great navigator. Captain Cook, founded a whole series of noble empires of the future in the Great South Land." — History of New South Wales (1875), p. 4.

Many Dutch navigators explored the west and southern coast line of the supposed continent during the seventeenth century, and left behind them lasting evidences of their visits, in the shape of names of islands, capes, and bays, which now figure prominently on the map of Australia. The first authentic discovery of any part of the west coast of the continent is said to have been made by Captain Dirk Hartog, who sailed from Amsterdam, in the Endraaght (Concord), in 1616. To the laud en the west coast near the 25th parallel, which he visited, he gave the name of his vessel : Endraaght^s Land. To one of the islands off the main coast he gave his own name. Dirk Hartog, and to another the name of Dorre, one of his sailors. The bay adjoining the island was afterwards named by Dampier Shark's Bay. In 1619 Captain Jan Edel visited that part of the coast south of Endraaght's Land. The south-west cape was rounded by Dutch mariners in 1622, and received the name of the vessel, '^Leeuwin" (Lioness), in which the discovery was made. In 1627 Captain Van Pieter de Xuyts in the Guide Zeepaert (Golden Serpent) cruised along a considerable part of the south coast of the continent, which he called Nuyts Land. Captain Pieter Carpenter, an oflBcer in the service of the Dutch East India Company, in 1627, explored and gave his name to the Gulf of Carpentaria. In 1628-9 Captain Pelsart, in command of the Batavin, was wrecked on the west coast at the spot known as Houtman's Abrolhos. The most important discovery made by the Dutch navigators, in the seventeenth century, was that of Abel Janssen Tasman. In 1642, Anthony Van Diemen, the Dutch Governor- General of Xetherlands India, organized an expedition to explore the coast of Australia, which had been sighted by so many Dutch adven- turers, but which still remained a terra incognita. Tasman was placed in command. He sailed from Batavia on 16th August, 1642, proceed- ing southward until he almost reached the 44th parallel. On 24th November, 1642, land was seen, to which he gave the name of Van Diemen's Land. The land first seen by Tasman is supposed to have been Point Hibbs. He saw and named Storm Bay ; discovered and named Maria Island, and then sailed eastward. On 18th December

26 HISTORICAL INTRODUCTION.

he discovered land, which he called Staaten Land, but which after- wards acquired the name of New Zealand; he anchored in a bay in the Strait, between the North and Middle Islands. He then sailed northward, passed and named Cape Maria Van Diemen, and made for the tropics, where he discovered the Tonga Islands. Had Tasman sailed from Van Diemen's Land northward instead of eastward, he would have anticipated Cook^s discovery of eastern Australia by one hundred years. In 1664, the country, whose leading outlines were yet dimly understood, was named New Holland by the States-General, and the discoveries of Tasman were proudly inscribed on the map of the world, cut in stone upon the New Staathaus in Amsterdam.

In 1683, William Dampier, one of a company of bold buccaneers, started off on a voyage round the world. After passing through many wild adventures, Dampier obtained the command of a vessel called the Cygnet, in which he reached the Philippines, and thence he proceeded on a voyage to New Holland. He reached the west coast in latitude 16° 50' on 4th January, 1688. In his narrative he said : *'New Holland is a very large tract of land. It is not yet determined whether it is an island or a main continent, but I am certain that it joins neither Asia, Africa or America." Dampier returned to England on 2nd September, 1691. In 1699, King William III. organized an expedition for the discovery of unknown lands. Dampier was placed in command, the name of the ship in which he sailed being the Roebuck. He reached the coast of New Holland on 4th July, 1699, and on the 1st August his ship struck the Abrolhos rooks, but escaped being wrecked. A harbour was found, which proved to be that of Dirk Hartog, who had anchored there in 1616. To this harbour Dampier gave the name of Shark's Bay. Afterwards Dampier sailed northward, passing in his course the archipelago which now bears his name. The coastline traced by him was apparently sterile and inhospitable. Dampier was the first Englishman who landed on the shores of New Holland. By some historians he has been styled the "prince of voyagers'' and "the Cook of a former age." European writers like Humboldt have borne testimony to his bravery, his skill, and his genius as a mariner, and to the value and accuracy of his reports concerning his discoveries. — Blair's History of Australia (1879), pp. 29-34.

The only voyage of consequence between Dampier's time and that of Cook was one by Willem de Vlamingh, a Dutch navigator, who, in 1699, was ordered by his Government to search for the Dutch ship Bidderschap, which was lost in 1684. In his search along the west coast, in the Geeliruk, Vlamingh discovered and entered Swan River.

Cook's Discoveries. — To Captain James Cook, one of Britain's bravest and most illustrious mariners, was reserved the immortal fame of commencing and completing a voyage of discovery next in import- ance to those of Columbus and Magellan, by which he solved the problem of the Great Southern Continent, discovered and explored the eastern shores of Australia — or New Holland, as it was then called — and took possession of it in the name of the British Crown. The immediate occasion and motive of Cook's first voyage was not a

MODERN COLOXIZATIOX. 27

thirst for gold or empire on the part of the British Government, but the conduct of a scientific expedition to the island of Otaheite, now called Tahiti, in the South Sea, for the purpose of observing the transit of the planet Venus across the sun's disc. On 26th August, 1768, Captain Cook sailed from Plymouth in the Endeavour, a barque of 360 tons, originally built for the coal trade. The barque was victualled for an eighteen months' voyage. Among those on board were Mr. (afterwards Sir) Joseph Banks, President of the Royal Society ; Mr. Charles Green, Assistant Astronomer ; Dr. Solander, a Swedish Botanist ; Zackary Hicks, lieutenant ; Robert Molineux, master ; Charles Gierke, mate ; John Guthrey, boatswain ; Stephen Forwood, gunner ; John Satterly, carpenter ; William B. Monkhouse, surgeon ; Richard Orton, clerk. Cook's instructions were to sail to Otaheite, and after the completion of the astronomical observations to proceed south as far as the 40th parallel — with a view to ascertain- ing the existence of the supposed " Terra Australis," or Great Southern Continent (quite distinct from Xew Holland) which geographers believed to exist in polar regions — and then to steer westward until lie reached New Zealand, after which he was to return to England.

The transit of Venus having been successfully observed, Cook and his party left Otaheite in the Endeavour on 13th July, 1769. He reached a latitude of 40° 12' without finding the imaginary continent, and then proceeded westward. After a run of about sixty-eight days, a lad on board the Endeavour, named Nicholas Young, saw land from the masthead, which afterwards proved to be the south-west point of Poverty Bay, New Zealand. That was on 6th October, 1769. Various parts of the island were visited, and on 10th November, 1769, Cook took formal possession of the country in the name of King George III. Having circumnavigated New Zealand and passed through the Straits which now bear his name, Cook, on 31st March, 1770, sailed from Cape Farewell towards the west, his plan being to steer westward until he should reach the east coast of New Holland, and then to follow the direction of that coast northward. On 18th April, Lieutenant Hicks caught sight of a projection of land which was named after him. Point Hicks. The name was subsequently changed to Cape Everard ; it is situated between Cape Howe and the entrance to the Snowy River. Proceeding northward, on 28th April, a bay was discovered and entered, and a landing effected. The name given to it at the time — as appears from Cook's private log — was " Sting-ray Harbour;" and its present name of Botany Bay, obviously suggested by Banks' botanical discoveries, appears for the first time in Dr. Hawkesworth's embellished narrative of Cook's voyages. See His- torical Records of N.S.W., Vol. I., p. 161. During his stay in Botany Bay Cook caused the British flag to be displayed on the shore ; and the ship's name and the date of his visit were inscribed on one of the trees near the watering place. On 6th May, 1770, the Endeavour resumed her voyage northward, and at noon on the same day Cook observed an opening in the coast which he called "Port Jackson," probably in honour of Mr. (afterwards Sir) George Jackson, one of the Secretaries of the Admiralty. See Historical Records of N.S.W., Vol. I., pp. 170-2.

28 HISTORICAL INTRODUCTION.

In the voyage northward all the prominent features of the coast were noted and named, including- Smoky Cape, Port Macquarie, Moreton Bay, Cape Capricorn, and other bays and capes. After skirting the dangerous coast for a distance of about thirteen hundred miles, the Endeavour narrowly escaped shipwreck by striking some coral rocks. On 21st October, 1770, Cape York was reached. The coast was followed in order to determine whether there was a passage between New Holland and New Guinea. A channel having been found, it was named Endeavour Straits — a name which has since been dropped in favour of Torres, the intrepid Portuguese who is supposed to have first sailed through. Cook landed and took formal possession of the whole country along which he had coasted. Cook's log, as " written up " by Hawkesworth, contains the following entry : — " I once more hoisted PJnglish colours, and though I had already taken possession of several parts, I now took possession of the whole eastern coast in right of His Majesty King Greorge III., by the name of New South Wales, with all the bays, harbours, rivers and islands situated upon it ; we then fired three volleys of small arms, which were answered by the same number from the ship. Having performed this ceremony upon the island we called it Possession Island." — Hawkes- worth, Voyages, Vol. III., p. 616.

Legend has it that Cook gave this name to the country owing to a fancied resemblance to the Welsh coast about Swansea. It is re- markable, however, that neither his official log nOr his private log, nor any of the journals of the ship's company, mentions the name of New South Wales. It seems either to have been an after-thought, or to have originated with Hawkesworth.- See Historical Records of N.S.W., Vol. I., pp. 169-70.

The first voyage of the Endeavour, and Cook's discoveries, con- stitute a story full of thrilling interest to Australians. His heroic services and his great work have not yet been adequately recognized by those of the British race who now possess and enjoy the glorious heritage, the Australian continent, which he helped so materially to bequeath to them. Whilst we are now celebrating the establishment of the Australian Commonwealth, and rejoicing at the beginning of a new era of national life which shall give us a more exalted citizen- ship, and a wider patriotism, let us not forget James Cook and his courageous comrades, who in a frail barque of 360 tons dared the storms of two oceans in search of new homes for the unborn millions of the British race. All honour to the name of Captain Cook !

Cook's second great voyage was commenced on 13th July, 1772, in the Resolution, 462 tons burthen ; he was accompanied by Captain Tobias Furneaux, in the Adventure, 336 tons. The object was to make further search for the supposed Southern Continent of the geographers. In this voyage Cook and Furneaux directed their course towards the South Pole, and penetrated beyond the Antarctic circle. On 8th February, 1773, the two vessels became separated. Cook then directed his course to Queen Charlotte's Sound, New Zealand, the appointed rendezvous. Captain Furneaux followed a more northerly course, coasted along the southern and eastern shores

jNrODERN COLONIZATION. 29

of Van Diemen's Land, and met Cook at Queen Charlotte's Sound. Subsequently Cook cruised in the Pacific, visited and named the New Hebrides group, landed on and named Xew Caledonia, dis- covered and named Norfolk Island. He returned to England on 30th July, 1775, after an absence of over three years, having conclusively proved that no Polar Continent existed in navigable seas. See Historical Records of N.S.W., Vol. I., pp. 333, 380.

In 1776 Cook commenced his third and last voyage. On this occasion he was again in command of the Besolution, and was accompanied by Captain Clarke, in the Discovery, 300 tons. On 26th January, 1777, he arrived off the coast of Yan Diemen's Land and anchored in Adventure Bay, which had been so named by Captain Furneaux. On 30th January the Resolution and Discovery left Yan Diemen's Land and sailed for New Zealand. Thence they left for the Society Islands. Cook's tragic death took place at Hawaii, one of the Sandwich Islands, on 14th February, 1779. His work was done. Australia, Tasmania and New Zealand were by his labours for ever secured to the inheritance of the British people.

Projects for Settlement. — The project of a settlement on the east coast of New Holland seems to have been due to the enthusiastic reports of Sir Joseph Banks as to the fertility and capacity of the country. Before a Committee of the House of Commons, appointed in 1779 to enquire into the question of transportation, he gave evidence that if it were thought expedient to establish a penal settlement in a distant land, " the place which appeared to him best adapted for such a purpose was Botany Bay, on the coast of New Holland." — Barton, History of N.S.W., Yol. I., p. xlv. The Committee, without recommending any particular locality, reported in favour of establishing a convict colony in some distant part of the globe.

The existing laws, however, only authorized transportation to the colonies and plantations of North America (see the Act 4 George I. c. 11) ; and as the independence of the American colonies Jiad now been recognized, further legislation was necessary. Accordingly in 1784 the Act was passed under which the first settlement of Australia took place, and which is dealt with in Part III. of this introduction.

Mention may here be made of a proposal by an Englishman, James Maria Matra, to establish in New South Wales a free settle- ment for the American loyalists who had suffered for their allegiance to the Crown during the war, and who might wish to remain under the British flag. This plan, though it received the hearty support of Sir Joseph Banks, was not favourably received by the Government, and New South Wales thus missed the opportunity of being founded as a free and settled colony. — Barton, History of N.S.W., Yol I., pp. 1-10.

From Cook to Flixders. — On 20th January, 1788, Captain Arthur Phillip arrived at Botany Bay with " the First Fleet," consisting of His Majesty's frigate Siriiis, in command of Captain John Hunter, accompanied by one armed tender, three store ships, and six trans- ports, conveying six hundred male and two hundred female prisoners, a guard consisting of one Major Commandant, three captains of marines, twelve sub-lieutenants, twenty-four non-commissioned officers.

30 HISTORICAL INTRODUCTION.

and one hundred and sixty-eight privates. There were also among them forty-two women, wives of the marines, together with their children. It was found that Botany Bay was not suitable for the proposed settlement. The ships remained in the harbour whilst Captain Phillip sailed along the coast in a boat for the purpose of examining the opening recorded by Captain Cook, and by him named Port Jackson. It was found to be a noble and beautiful harbour. In one of its many bays a site suitable for a settlement was selected, and named ''Sydney Cove" in honour of Viscount Sydney, one of the members of Pitt's administration. Eeturning to Botany Bay, Captain Phillip proceeded to make arrangements to send the ships around to Sydney Cove. Meanwhile two ships, flying the French colours, appeared on the scene. They proved to be the French exploring vessels Boussole . and Astrolabe, under the command of La Perouse ; they came there for wood and water. After delivering to Captain Phillip despatches to be forwarded to the French Govern- ment, La Perouse sailed away across the Pacific, and was never again seen or heard of, but in 1826 traces of his wrecked ship were found on the island of Vanikoro, near the Fijis. On 26th January the fleet sailed into Port Jackson. The people were disembarked at Sydney Cove. The British colours were hoisted. The Eoyal Pro- clamation and Commission constituting the colony of New South Wales were read. A salute was fired. The work begun by Cook was about to bear its fruit in the shape of Australian settlement and colonization.

In April, 1791, George Vancouver, an English navigator, who accompanied Captain Cook on his second and third voyages, made a careful survey of the south-west coast of Australia, in the course of which he inspected a harbour which he named King George's Sound in honour of the reigning sovereign.

In 1792, a French expedition, under Admiral Bruni D'Entre- casteaux in the Recherche, accompanied by Captain Huon Kermadec in the Eftperance, discovered Recherche Archipelago and Bsperance Bay, W.A., and then visited the coast of Van Diemen's Land, in search of the lost La Perouse. They passed through the channel bearing the name of the Admiral, and sailed up the Huon and the Derwent.

In 1795 Captain John Hunter arrived in New South Wales, in the Reliance, to commence his duties as Governor in succession to Captain Phillip. There came with him two young men whose names have become honoured by their association with memorable events in connection with Australian maritime discoveries — Matthew Flinders, midshipman, and George Bass, surgeon. They afterwards took a leading part in exploring previously unknown tracts in Australian waters, and in solving geographical problems of great importance. On 3rd December, 1797, whilst Flinders was engaged on a surveying voyage at Furneaux's Islands, Bass, obtaining from the Governor the use of a whaleboat, a crew of six men, and provisions for six weeks, started from Sydney, cleared the heads and sailed southwards; explored the coast, discovered Twofold Bay, passed southward beyond the great projection of land, now called Wilson's Promontory,

MODERN COLONIZATION. 31

and then proceeded further westward until he discovered the harbour now known as Western Port. He had entered the channel which runs between Van Diemen's Land and Australia, though he was not certain of its continuity. In October, 1798, Flinders, associated with Bass, sailed from Sydney in a small decked vessel named the Norfolk, 25 tons; made for Van Diemen's Land; steered along its northern coast; discovered and entered Tamar heads and anchored in Port Dalrymple ; rounded the north-west headland (Cape Grim) and eventually circumnavigated the island, for the first time deter- mining its insularity. The name of Bass is immortalized in the Straits, to which, on the recommendation of Flinders, it was given. In 1799, Flinders was sent by Governor Hunter to explore the coastline north of Port Jackson. In the sloop Norfolk he proceeded along the coast, examined Moreton Bay and afterwards went as far as Hervey's Bay.

On 17th March, 1800, Lieutenant James Grant was sent from England, in command of the surveying ship Lady Nelson, 60 tons, for the purpose of exploring the southern coast of Xew Holland. On rounding the West Australian cape, he shaped his course to reach Sydney through the Straits discovered by Bass and Flinders, instead of proceeding via Van Diemen's Land. On 3rd December, 1800, Grant sighted a part of the coast of South Australia, to which he gave the name of Cape Northumberland. He also sighted and named other points, including Cape Bridgewater and Cape Otway. The Lady Nelson was the first ship to pass through Bass Straits from the westward. Afterwards Grant, in the Lady Nelson, surveyed the coast between Wilson's Promontory and Western Port. Lieu- tenant Murray succeeded Grant in command of the Lady Nelson. On 12th November, 1801, Murray started from Sydney for the pur- pose of prosecuting a more minute exploration along the south coast. This voyage resulted in the discovery of an opening between Western Port and Cape Otway ; it was first seen on 5th January, 1802, but owing to unfavourable weather it could not be entered for several weeks. It was first inspected in a launch, by Mr. Bowen, the mate of the Lady Nelson, who entered it on 1st February. The Lady Nelson was then brought round from Western Port, and on 15th February passed through the narrow channel. This proved the gateway to what Murray described as "a noble harbour," which he named Port King, but the name was afterwards changed to Port Phillip, in honour of the first Governor of New South Wales.

At about this time Flinders was on his way back from England in the flagship Livestigator, 334 tons. He reached Cape Leeuwin on 7th December, 1801; entered King George's Sound; surveyed the coast eastward; discovered and named Fowler's Bay, Smoky Bay, Streaky Bay, Port Lincoln, Spenser's Gulf, Hardwick Bay, Point Marsden, Nepean Bay, the Gulf of St. Vincent, Yorke Penin- sula, Mount Lofty, Kangaroo Island, and Backstairs Passage. At Encounter Bay he came across Commodore Baudin, in command of the French ship Geographe.

In 1801 a French expedition commenced an exploration of the

32 HISTORICAL INTRODUCTEOK

Australian coast which has left enduring traces of its investigatioiis on the map of the continent. It consisted of three ships — the Geographe, the Naturaliste, and the Casurina. It was under the command of Commodore Baudin and his first lieutenant, M. Freycinet. They appeared to have examined a part of the west coast of the continent, and also the eastern coast of Van Diemen's Land, where they were engaged so long that Flinders, in the Investigator, had almost completed his survey of the southern coast when Baudin proceeded to explore from the east to westward. Referring to the meeting of Flinders and Baudin, Mr. David Blair wrote : " Flinders subsequently found that the French, by the orders of the Emperor Napoleon, claimed all the south coast as their discovery, and had named the various points along it by the names of the emperor and his courtiers. They even gave the whole territory the name of Napoleon Land. The officers of the Geographe knew well that all this was done without warrant, for one of them — M. Freycinet, first lieutenant to Captain Baudin — said afterwards to Flinders at Sydney Government House: * Captain, if we had not been kept so long picking up shells and catching butterflies in Van Diemen's Land, you would not have discovered the south coast before us.^ It is but justice to the French people to say that all idea of appropriating Flinders's discoveries has long since been abandoned by them." — ■ Blair's History of Australia, p. 115.

Flinders proceeded on his voyage eastward, and on reaching Cape Otway he proceeded to explore the great indentation which Grant had reported. Flinders then discovered the opening within which was situated Port Phillip, which he entered on 27th April, 1802, without having any knowledge of its having been previously (15th February, 1802) entered by Lieutenant Murray. " Strangely enough," wrote Dr. Lang, " Port Phillip was afterwards discovered, on 30th March of the same year, by Captain Baudin, of the French expedition; and again, on the 27th April following — all indepen- dently— by Captain Flinders; but the honour of the discovery is unquestionably due to Lieutenant Murray, who had preceded Captain Baudin six weeks and Captain Flinders ten." — History of New South Wales, p. 82. After quitting Port Phillip, Flinders proceeded on his journey to Sydney, which he reached on 9th May, 1802. On his arrival there, he found the French ship Naturaliste in the harbour, to the commander of which, Captain Hamlin, he showed his charts of the coast between Cape Nuyts and Encounter Bay. — Blair's History of Australia, p. 116.

In 1802, Governor King despatched Surveyor-general Grimes in the Cumberland to examine Port Phillip and to warn off Com- modore Baudin, who was known to be in the neighbourhood, with the Geographe and the Naturaliste, and meditating annexation of the south coast for the French Government. Grimes fell in with Baudin on 8th December at King's Island. Grimes delivered his despatches to Baudin, and after exploring King's Island he entered Port Phillip and proceeded to examine its coast line. On 2nd Feb- ruary, 1803, he ascended the Yarra. He was the first white man who trod the destined site of the city of Melbourne.

MODERN COLONIZATION. 33

The Name "Acstralia." — The continent of Australia was not yet known by that name. It was usually described, either by the old name, " Terra Australis/' given by the geographers, or by the Dutch designation of " New Holland." In 1606 de Quiros gave to an island in the New Hebrides, which he believed to be part of the Great Southern Continent, the name of " La Austrialia del Espiritu Santo" (seep. 24 supra). De3rosses, in his Histoire des Navigations aux Terres Australes (1756), coined the name *' Austral- Asia " to describe the islands in a part of the South Pacific. The word ^"^ Australia " seems to have been first used by Dalrymple, in his Collection of Yoyages in the South Pacific, published in 1770, when Cook was actually in Australian waters. Dalrymple, however, applied the name, not to New Holland alone, but to " all the lands and islands to the westward of South America." The application of the word " Australia " to the Continent seems to have been first suggested by Matthew Flinders in 1814, and in about 1820 it came into general use. — Barton, History of N.S.W., vol. 1, pp. 86-93. In 1829 it first appeared in the Imperial Statute Book in the Act 10 Geo. lY. c. 22, which made legal provision for the settlement of ''Western Australia, on the western coast of New Holland."

Greater Britain. — The limits of our space will not permit us to trace the progress of exploration and settlement along the shores and through the interior of Australia during the first century of its history. We can only present a brief sketch of the beginning and gradual development of Provincial Government in each colony leading up to the movement in favour of federal union. We bring to a close our review of the progress of British colonization with a few general observations on the relations of British colonies to the empire of which they form a part. The people of Australia are in the undisputed enjoyment and possession of one of the fairest countries beneath the sun, with all the rights and privileges of free institutions, political equality and local self-government. They are now entering upon that higher act of political union, at all times contemplated, with the inestimable advantage of forming an integral part of the British Empire. That Empire is much vaster in dominion, much richer and more populous than when Great Britain lost the United States. " The sun of England " has not set for ever. It shines brighter than ever ; brighter by reason of the pass- ing away of political darkness, misgovernment, corruption, and despotism; brighter by reason of the enlightened views of her statesmen and the enfranchisement of her toiling masses ; brighter by reason of the democratic constitutions which have been granted to her colonies and dependencies in all parts of the earth. The red line of British frontier has been creeping in advance of all the other national colours on the map ; stretching into distant " regions Caesar never knew." But in all this the policy of the nation has been colonization, not conquest ; the planting of people on the soil, and enabling them to build homes for themselves and reclaim the wilderness from the savage for their own benefit and the comforts and delights of existence ; not for the glorification of princes, or

34 HISTORICAL INTRODUCTION.

the enrichment of families in Europe, as was the case in the Spanish and French systems.

Consider for a moment the vast magnitude, the enormous wealth, and the surprising population of the British Empire at the present time. There are about 56 colonies and dependencies recog- nizing the sovereignty of the Queen. The area at home and abroad amounts to 11,712,171 square miles; the coast line of this area exceeds in length the entire circumference of the earth, being 28,500 miles; the total annual public revenue of Great Britain and her colonies and her dependencies for the year 1897-8 was £256,452,167; the annual value of exports £515,730,000, and im- ports £746,407,484 ; the population was 385,280,140. Such is the majestic fabric of the British Empire of to-day, of which Daniel Webster, the American orator, said so long ago as May, 1834, that she was the '^ power which dotted the surface of the whole globe with her possessions and military ^iposts, whose morning drum-beat, following the sun and keeping company with the hours, circles the earth with one continuous and unbroken strain of the martial airs of England.'^

From the contemplation of these facts we can, to some extent, realise the greatness of the birth-right which has descended to us through the labours, the enterprise, the patriotism, and the sacrifices of the pioneers of British colonization, and the builders of the British Empire.

COLONIAL GOVERNMENT IN AUSTRALIA. 35

F^RT III. COLONIAL GOVERNMENT IN AUSTRALIA.

(1) NEW SOUTH WALES.

Earliest Statutory Authority. — In 1784 the Imperial Parlia- ment passed the statute, 24 Geo. III. c. 56, intituled " An Act for the effectual transportation of felons and other offenders, and to authorize the removal of prisoners in certain cases, and for other purposes therein mentioned." This law empowered the King, with the advice of the Privy Council, to appoint places to which felons might be transferred. By an Order in Council bearing date 6th December, 1786, His Majesty's "territory of New South Wales situated on the east part of New Holland " was appointed a place for the reception of persons within the meaning of the Act.

By letters patent and commission dated 2nd April, 1787, Captain Arthur Phillip was appointed Governor and Vice-Admiral of the territory. It was declared that the limits of his authority extended " From the north cape or northern extremity of the coast called Cape York, in latitude of 10° 37' south, to the south cape or southern extremity of the coast in latitude of 43" 39' south, and inland to the westward as far as 135" east longitude, reckoning from the meridian of Greenwich ; including all the islands adjacent in the Pacific Ocean within the latitudes aforesaid." The western or inland boundary was afterwards (1827) extended to the 129tli meridian. The Governor was empowered to make orders for the good govern- ment of the settlement. In the shape of ordinances, he created offences and crimes previously unknown to the law; he made regu- lations; he modified tlie application of the law of England in matters relating to police, tolls, and convict labour. His legislative powers were assumed to be founded on and justified by the prerogatives of the Crown. There is now reasonable ground for entertaining a doubt whether the Crown had authority to delegate such a power to the Governor. — Mr. Commissioner Bigge's Report (1823), p. 10; Bentham's Plea for the Constitution, IV., p. 255-60; Webb's Imperial Law, p. 25.

The Judicial authority necessary for the government of the new settlement was derived partly from statute and partly from preroga- tive, similarly assumed to exist. The Act 27 Geo. III. c. 2, intituled "An Act to enable His Majesty to establish a Court of Criminal Jurisdiction on the eastern coast of New South Wales and the parts adjacent thereto," authorized the Crown by letters patent to erect a criminal court for the trial and punishment of treasons, felonies, and misdemeanours. This court, which was similar in its constitution to a court of Admiralty in its criminal jurisdiction, was composed of a Judge-Advocate and six naval or military officers to be selected by the Governor. There was thus ample statutory authority for

36 HISTORICAL INTRODUCTION.

the administration of criminal law according to a procedure suitable enough, perhaps, for a penal settlement, but not for a free com- munity. There was no statutory authority whatever for the creation of civil courts. The Imperial authorities seem to have considered that the Crown, in the exercise of its prerogative, could constitute civil courts. By letters patent, dated 2nd April, 1787, the Crown created a court of civil jurisdiction having power to deal in a sum- mary way with personal actions and probate and administration proceedings "according to the law of England." The civil court was presided over by the Judge-Advocate and two inhabitants of the settlement, appointed by the Governor. This civil procedure continued 'in operation until 4th February, 1814, when fresh letters patent were issued, formulating a new plan of administration, by which the civil and criminal jurisdictions, previously united in the Judge-Advocate, were separated. A primary civil court, presided over by the Judge- Advocate and two inhabitants appointed by the Governor, was established and endowed with jurisdiction in personal actions in which the amount involved did nob exceed £50. A Supreme Court, presided over by a Judge and two magistrates, was erected and clothed with jurisdiction in personal actions in which the amount involved exceeded £50, and with general jurisdiction in equity, probate, and administration matters. Eminent jurists are now of opinion that these civil courts were established by the Crown without any constitutional authority. The legislative power exercised by the Governor is also believed to have been equally unconstitu- tional.— Webb's Imperial Law, p. 24.

The Governor was endowed with almost absolute power. His rule was a despotism, tempered by his own discretion and by the knowledge that he was liable to be called to account by the Imperial authorities for any maladministration. His oath of office principally required him to olsserve the law relating to trade and plantations. — Jenks' Government of Victoria, p. 11. Such was the legal authority under which, on 26th January, 1788, a penal settlement was estab- lished and for many years afterwards maintained at Sydney Cove. It was not at first intended to be a colony or plantation within the ordinary meaning of those terms, viz., for the purpose of trade and cultivation. — Clarke's Colonial Law, p. I. Lubbock v. Potts^ 7 East 449. Webb's Imperial Law, p. 12.

By the Acts 59 Geo. III. c. 114, 1 and 2 Geo. IV. c. 8, and 3 Geo. IV. c. 96, the Governor of New South Wales was given limited powers to impose local taxation in the shape of Customs duties on spirits, tobacco and other goods imported into the colony.

A Rudimentary Charter. — The temporary Act 4 Geo. IV. c. 96 (1823), which became law during the governorship of Sir Thomas Brisbane, was the first legislation passed by the Imperial Parliament conferring anything like the rudiments of local self-government on the New South Wales community. It was intituled "An Act to pro- vide until the 1st day of July, 1827, and until the end of the next session of Parliament, for the better administration of justice in New South Wales and Van Diemen's Land, and for the more effectual government thereof ;" but it went a little beyond its title. The old

COLONIAL GOVERNMENT IN AUSTRALIA. 37

Military Courts of 1787 were abolished, and a Supreme Court and Court of Appeal, on something like the English model, were authorized to be erected. The Crown was empowered to create, by warrant, a Council consisting of from five to seven persons charged with certain legislative powers of a limited character. They were to be appointed during the pleasure of the Crown ; they could advise but not overrule the Governor in matters of legislation, and all laws and ordinances passed with their approval were required to be laid before the British Parliament. On 1 7th May, 1824, a charter of Justice, bearing date 13th October, 1823, was promulgated, creating the Supreme Court of New South Wales, and appointing Francis Forbes, Esq., to be the first Chief Justice. On 1st December, 1823, five persons were appointed members of the Council, consisting of the principal Grovernment officials, viz., the Lieutenant-Governor, the Chief Justice, the Colonial Secretary, the Principal Surgeon, and the Surveyor-General for the time being. On 17th July, 1825, the Council was re-constituted and increased to its full number of members, including three private persons, residents of the colony.

Up to the passing of the Act 4 Geo. lY. c. 96 (1823), Van Diemen's Land was a dependency of New South Wales. By sec. 24 of that Act the Crown was authorized to proclaim Van Diemen's Land a separate colony independent of New South Wales. The history of New South Wales and Van Diemen's Land (afterwards Tasmania), as constitutional colonies, begins with the Act 4 Geo. IV. c. 96, which was their first charter of Government.

The Act 9 Geo. IV. c. 83 (25th July, 1828), intituled '' An Act for the Administration of Justice in New South Wales and Van Diemen's Land, and for the effectual government thereof," was the second constitutional charter of Australia. It was passed during the governorship of Lieutenant-General Sir Ralph Darling. It re-enacted the main provisions of the temporary measure and made better pro- vision for the administration of justice. The civil and criminal juris- dictions of the courts were amended and improved, power being given to the respective Legislative Councils to introduce trial by jury in all criminal cases. It contained the well-known section (24), which enacts " That all laws and statutes in force within the realm of Eng- land at the time of the passing of this Act (not being inconsistent herewith, or with any charter, or letters patent, or Order in Council, which may be issued in pursuance hereof), shall be applied in the administration of justice, in the courts of New South Wales and Van Diemen's Land respectively, so far as the same can be applied within the said colonies ; and as often as any doubt shall arise as to the application of any such laws or statutes in the said colonies respectively, it shall be lawful for the Governors of the said colonies respectively, by and with the advice of the Legislative Councils of the said colonies respectively, by ordinances to be by them for that purpose made, to declare whether such laws or statutes shall be deemed to extend to such colonies, and to be in force within the same, or to make and establish such limitations and modifications of any such laws and statutes within the said colonies respectively, as may be deemed expedient in that behalf."

38 HISTORICAL INTRODUCTION.

Another interesting and important section of this Act was sec. 20, in which it was recited that "it may be necessary to make laws and ordinances for the welfare and good government of the said colonies of New South Wales and Van Diemen's Land, and the dependencies thereof, the occasions of which cannot be foreseen, nor without much delay and inconvenience provided for, without entrusting that authority for a certain time, and under proper restrictions, to persons resident there." It was also recited that "it is not at present expedient to call a Legislative Assembly in either of the said colonies." It then proceeded to enact " That it shall and may be lawful for His Majesty, his Heirs and Successors, by warrants under his or their sign manual, to constitute and appoint in New South Wales and Van Diemen's Land respectively, a Council, to consist of such persons resident in the said colonies respectively, not exceeding fifteen nor less than ten, as His Majesty, his Heirs and Successors, shall be pleased to nominate."

The Governors of the colonies of New South Wales and Van Diemen's Land, with the advice of the Legislative Councils so created, were authorized "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." This included certain limited powers of levying customs and excise taxation for local purposes, but it conveyed no control over the waste lands of the Crown. No proposed law could be passed by either of these Councils unless it was first laid before such Council by the Governor of the colony. The members of these legislative bodies held their seats at the pleasure of the Crown, and they had no control over the administration, which was exclusively vested in the Governor.

At this time the official staff of the New South Wales Govern- ment consisted of a Chief Justice, an Archdeacon, a Colonial Secretary, an Attorney-General, a Collector of Customs, an Auditor-General, a Principal Surgeon, and a Surveyor-General. These appointments were made by the Imperial Government, During this period Ave find some of the earliest traces of a colonial Executive Council, a body which subsequently acquired in the Australian colonies a position analagous to that of the Privy Council in England. In the Commis- sion appointing Sir Richard Bourke Governor of New South Wales {25th June, 1831), he was authorized to nominate an Executive Council. This Council consisted of such of the leading government officials as the Governor thought fit to consult with in matters of local administration. — Jenks' Government of Victoria, p. 17.

First Reprksentative Legislature. — The third important charter regulating the Government of New South Wales was 5 and 6 Vic. c. 76 (30th July, 1842), passed during the Governorship of Sir George Gipps. It was intituled " An Act for the Government of New South Wales and Van Diemen's Land," but it principally concerned, and was for the benefit of, New South Wales. The Legislative Councils established by previous Acts were purely nominee and irresponsible bodies. This Act established, for the first time in Australia, a legis-

COLONIAL GOVERNMENT IN AUSTRALIA. 39

lature partly, but not wholly, representative in its character. It was enacted that there should be within the colony of Xew South Wales a Leo-islative Council to consist of 36 members, 12 of whom were to be appointed by Her Majesty and 24 elected by the inhabitants of the colony. The Governor with the advice and consent of the Coun- cil was authorized to make laws for the peace, welfare and good government of the colony, including the power to impose duties of customs, provided that such laws were not to be repugnant to the law of England ; nor were they to interfere with the sale or appro- priation of lands belonging to the Crown or with the revenue arising from the same. Bills imposing duties of customs had to be reserved for the Queen's assent. The Council was to be presided over by a Speaker elected by itself. There was to be a session of the Council once every year, and every Council was to continue for five years from the day of the return of the writs and no longer, subject to be sooner dissolved by the Governor. Power was given to the Governor to establish, by letters patent, district Councils for the purpose of carrying on local government in such counties or other divisions of the colony as he might deem fit. Elective members of the Council were required to be the o\vners of freehold land of the clear annual value of £100, or of the capital value of £2,000. They had to be chosen by the votes of electors being owners of freehold land of the clear capital value of £200, or householders occupying dwellings of the clear annual value of £20. This Act also contained provisions relating to the giving or withholding by the Governor of the Royal assent to Bills passed by the Council, the disallowance of Bills assented to by the Governor, and the assent to Bills reserved by the Governor, and enacting that the Queen, by the advice of the Privy Council, or through one of her principal Secretaries of State, might convey instructions to the Governor for his guid- ance.

This Act did not grant to New South Wales the system known as Responsible Government. The Governor was still his own prime minister, and the heads of the Departments and other public officers still continued to receive and hold their appointments from the Crown ; their tenure of office depended, not on their possession of the confidence of the Legislative Council, but on the pleasure of the Crown represented by the Governor. Although it was only a half measure and an instalment of political freedom, it marked the dawn of a new system. It contained the feeble germs of Representative Government, whence has since sprung the splendid fabric of the Parliamentary institutions in Australia. It was the first concession made by enlightened British statesmen to the growing wealth and importance of the Australasian colonies. Limited as were the pro- visions of this Constitutional Act, meagre as were the liberties con- ferred, it was nevertheless drawn on lines capable of development and expansion with the growing wants and aspirations of the young community. The Council was built partly on the representative principle, and the qualified electors of the colony had the predomi- nant power of .constituting twenty-four members, as against twelve nominated by the Crown. The new Council was opened by Sir

40 HISTORICAL INTRODUCTION.

George Gipps on 1st August, 1843, and among the electire members were — William Charles Wentworth and William Bland, for the city of Sydney; John Danmore Lang, Charles Nicholson, Thomas Walker, among the members for the District of Port Phillip (now Victoria) ; Charles Cowper, Richard Windeyer, George Robert Nichols.

The next important charter of Representative Government in Australia was 13 and 14 Vic. c. 59 (5th August, 1850) intituled " An Act for the better government of Her Majesty's Australian colonies," and commouly known as the Australian Colonies Govern- ment Act. The Bill, of which this Act was the outcome, was first introduced into the House of Commons in June, 1849. The two main objects of the Act were the separation of the Port Phillip District from New South Wales, and the establishment in all the colonies of an improved system of Provincial Government. The Legislative Council, erected in New South Wales by the Act of 1842, was not materially disturbed. Its powers were in some respects increased, and the franchise on which its representative members were elected was liberalized.

The Governor and Legislative Council of New South Wales were empowered to increase the number of members of that body, subject to the condition that one-third of its members were to be nominated by Her Majesty and the remaining members to be elected by the inhabitants of the colony. The property qualification of . electors was reduced in the case of freeholders from £200 to £100, capital value, and in the case of occupiers of dwellings from £20 to £10 per annum. The qualification of members remained as under the Act of 1842.

Two new powers were conferred on the Governor and Legislative Council by this Act, which they did not possess by the Act of 1842. The Governor, with the advice of the Council, was authorized to impose and levy duties of Customs on the importation of goods, wares and merchandise imported into the colony from any part of the world, subject to the limitation that no differential duties could be imposed (sec. 27). There was no provision requiring Customs Bills to be reserved for the Queen's assent ; and all doubts whether such reservation was still necessary were afterwards removed by the declaratory Act 29 and 30 Vic. c, 74. Power was given to the Governor and Legislative Council, in common with the Governors and Legislative Councils of .the other Australian colonies, to alter the qualifications of electors and of members as fixed by the Act, or to establish, instead of the Legislative Council, a Council and a House of Representatives, or other separate legislative Houses, to be ap- pointed or elected by such persons and in such manner as should be determined, and to vest in such Houses the powers and functions of the old Legislative Council, provided that such Bill should be reserved for the signification of the Queen's pleasure (sec. 32). The Council was still unable to pass laws repugnant to the law of England or relating to the sale and appropriation of the waste lands of the Crown, which continued to be dealt with under Imperial Legislation (sec. 14). The Act 13 and 14 Vic. c. 59 was forwarded by Earl Grey to Governor Fitzroy, accompanied by a despatch dated 30th August,

COLONIAL GOYERNMENT IN AUSTRALIA. 41

1850, in which the Secretary ot State explained the views of the Home Government. The Act reached the colony on 11th January,

1851, and was immediately proclaimed. In June following Governor Fitzroy received a commission under the Great Seal appointing him Captain-General and Governor-General of all Her Majesty's Aus- tralian possessions; a commission appointing him Governor of New South Wales ; and three separate commissions appointing him Governor of the colonies of Van Diemen's Land, South Australia and Victoria respectively ; also commissions for the appointment of Lieu- tenant-Governors of Van Diemen's Land, South Australia and Victoria, together with warrants delegating to the Governor of Xew South Wales and the Lieutenant-Governors of the other colonies the power to nominate non-elective members of their respective Legislative Councils. Each commission was accompanied by royal instructions.

On 8th April, 1851, the Legislative Council of New South Wales, under the leadership of Mr. W. C. Wentworth, adopted a report of its select committee, which protested against the new Constitution Act on the grounds that it did not place the control of all revenue and taxation entirely in the hands of the Colonial Legislature ; that all offices of trust and emolument should be filled by the Governor and Executive Council, unfettered by instructions from the Secretary of State for the Colonies ; and that plenary powers of legislation should be conferred on the Colonial Legislature. It concluded by " solemnly protesting against these wrongs, and declaring and insist- ing on these our undoubted rights ; we leave the redress of the one and the assertion of the other to the people whom we represent and the legislature which shall follow us." — Tregarthen's Australian Commonwealth (1893), p. 139.

An Electoral Bill for New South Wales was passed increasinor the number of members of the Council from 36 to 54, of whom 36 were to be elective members and 18 nominee members. An Elec- toral Bill for Victoria was passed providing that the Legislative Council of that colony should consist of 30 members, 10 nominated by the Crown and 20 elective.

Demand for Responsible Government. — A new election of the Legislative Council of New South Wales, on the liberalized fran- chise, then took place. The newly-constituted Council affirmed the opinion of its predecessor and passed a resolution that it was "pre- pared 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 estab- lishment of a constitution similar in its outline to that of Canada, to assume and provide for the whole cost of our internal govern- ment, whether civil or military." In a despatch addressed to Governor Fitzroy, dated 15th December, 1852, Sir John Fakington, the Secretary for the Colonies, stated that Her Majesty's Govern- ment had been greatly influenced by the considerations arising from the extraordinary discoveries of gold in the Australian colonies, which had imparted new and unforeseen features to their political and social conditions. Such a state of affairs had no parallel in history, and in all human probability there would be an advance in

42 HISTORICAL INTRODUCTION.

the population, wealth and material prosperity, with a rapidity un- precedented. Her Majesty's Government had further observed with satisfaction the general order and good conduct which distinguished the behaviour of the multitudes attracted to the gold deposits, and they were also bound to recognize the firmness and good judgment of the local authorities. With this evidence before them Her Majesty's Government could not but feel that, whilst it was more urgently necessary than before to place the full power of self-government in the hands of the colonies, it was equally plain that the extraordinary increase in wealth and prosperity testified to their fitness to regulate their own affairs. In reply, therefore, to the desire expressed by the Legislative Council of New South Wales in favour of a Consti- tution similar in its outlines to that of Canada, it was the wish of Her Majesty's Government that there should be established, in each colony, a new legislature on the basis of an Elective House and a Legislative Council nominated by the Crown or appointed subject to the approval of the Crown. Upon the receipt of such a constitutional enactment, framed by the existing Councils, with civil lists for the payment of salaries of permanent oJSicers attached, the Imperial Government would undertake forthwith to propose to Parliament such measures as would be necessary to carry into effect the entire arrange- ment, viz. : — (1) By the repeal of the Land Sale Act, under which the sale of lands was vested m the Imperial authorities, and could not be regulated by colonial legislatures ; and (2) by the requisite alteration in the Constitutional Act of 1850 with the schedules annexed thereto. It was added that the civil lists should provide permanent appropria- tion for the maintenance of the salaries of the principal officers of Government, such as the Governor, heads of departments, judges, &c. " It is my wish," concluded Sir John Pakington, " that the change should be speedily and satisfactorily effected."

The New Constitution. — On the receipt of Sir John Pakington's despatch a committee was appointed by the Council to draft a Consti- tution. Of that committee Wentworth was one of the leading spirits. By the terms of the Enabling Act 13 and 14 Vic. c. 59 s. 32, the Governor, with the advice of the Legislative Council, had been authorized to establish in the colony, instead of the Legislative Coun- cil, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as might be determined, and to vest in such Houses the. powers and functions of the Legislative Council for which the same were substituted. The Select Committee appointed to frame a new Constitution were not contented to establish a bi-cameral legislature capable of exercising only the powers and functions of the old Council. They considered it necessary that the new legislature should have " increased powers and functions;" and the Bill drafted by them was designed to confer on the new legislature increased powers and functions. In so doing the framers of the Con- stitution acted in excess of the authority conferred by section 32, and they ran the risk of the Royal assent being refused. This was what actually occurred to the first Constitution framed by the Legislative Council of South Australia. Nevertheless the leaders of political

COLONIAL GOVERNMENT IN AUSTRALIA. 43

thought in Xew South Wales, believing that the measure of power granted by the Constitutional Act of 1850 was not sufficient to meet the requirements of the colony, proposed that the new legislature should have an express and enlarged grant of powers and functions, without reference to the limitations of the Act of 1850.

The opening section of the Bill provided that there should be, m place of the Legislative Council then subsisting, a Legislative Council and a Legislative Assembly, and that Her Majesty should have the power, by and with the advice and consent of the said Council and Assembly, to make laws for the " peace, welfare and good government of the said colony in all cases whatsoever.^' Mem- bers of the Legislative Council were to be nominated by the Governor with the advice of the Executive Council. The first nominees were to hold their seats for five years only, but subsequent nominees were to be appointed for life. The members of the Assembly were to be chosen by the electors upon the franchise prescribed in the Bill. Section 45 specially enabled the legislature so constituted to impose and levy duties of Customs. Section 47 provided that all revenue should form a consolidated fund to be appropriated by the legisla- ture in the manner directed. Two other sections conferred power to amend the Constitution, subject to certain conditions; another section declared that, subject to provisions therein contained, the legislature could make laws regulating the sale and disposition of the waste lands of the Crown. The final section stipulated that the Bill should not have any force or effect until inconsistent Imperial Acts were repealed and the entire management and control of the waste lands of the colony were vested in the proposed legislature. These grants of powers may be thus summarized : —

1. To make laws in and for New South Wales in all cases

whatsoever.

2. To impose taxation, including duties of Customs.

3. To appropriate revenue.

4. To legislate concerning the waste lands of the Crown.

5. To amend the Constitution of the Council and Assembly

subject to certain conditions. Accompanying these grants there were certain restrictions : —

1. That duties were not to be levied on supplies for Her

Majesty's land and sea forces.

2. That no fiscal and commercial laws should be passed in-

consistent with treaties concluded by Her Majesty with any foreign power.

3. That no differential or preferential duties of Customs should

be imposed.

4. That all Bills for appropriating any part of the public

revenue or for imposing any new rate, tax or impost should originate in the Legislative Assembly.

5. That it should not be lawful for the Assembly to originate

or pass any vote, resolution or Bill for the appropriation of any part of the "consolidated revenue fund to any pur- pose which should not have been first recommended by a message of the Governor to the said Assembly.

44 HISTORICAL INTRODUCTION.

The Bill contained provisions relating to electoral matters ; re- specting the assent of the Governor to Bills, and the disallowance of Bills by Her Majesty ; also respecting the boundaries of the Aus- tralian colonies. Another section of some significance was one which provided that the appointment to all public ofiices, whether salaried or not, should be vested in the Governor, with the advice of the Executive Council, " with the exception of the appointments of the officers liable to retire from office on political grounds as hereinafter mentioned, which appointments shall be vested in the Governor alone."— Sec. 37.

On 21st December, 1853, the new Constitution was adopted by the Council and transmitted to the Secretary of State for the Colonies. As it contained provisions in excess of the power con- ferred by 13 and 14 Vic. c, 59 s. 32, the Bill could not receive the Royal assent. It was decided by the Imperial Government to strike out the clauses relating to the reservation and disallowance of Bills. In that amended shape it was made a schedule to a Bill introduced into the Imperial Parliament, entituled "A Bill to enable Her Majesty to assent to a Bill, as amended, by the legislature of New South Wales to confer a Constitution on New South Wales and to grant a civil list to Her Majesty.^' Section 2 of this Bill conferred on the Parliament of New South Wales the entire management and control of the waste lands of the Crown; section 3 preserved the provisions of former Acts respecting the allowance and disallowance of Bills ; section 4 preserved to the Parliament of New South Wales the power to make laws amending the Constitution, subject to the provisions contained therein; section 5 declared that the whole water- course of the river Murray from its source to the eastern boundary of South Australia should be deemed to be within the territory of New South Wales. In this shape the Bill was passed by the Imperial Parliament and received the Royal assent on 16th July, 1855. Its number is 18 and 19 Vic. c. 54, and it is now known as the New South Wales Constitution Statute, whilst the Act contained in the Schedule is known as the New South Wales Constitution Act.

The Act conferring a Constitution on Victoria was assented to on the same day. These Acts were transmitted to the respective colonies, accompanied by explanatory despatches from the Secretary of State, Lord John Russell, in which the Governors were instructed as to the introduction of Responsible Government.

Responsible Government. — "That great change in our colonial system which is known as the introduction of Responsible Govern- ment was," wrote Dr. Hearn, " effected solely by a despatch from a Secretary of State. This despatch did not even affect the legal tenure of colonial offices ; it merely described the circumstances in which the Crown would exercise its right of displacing at its pleasure certain classes of its servants. In the body of the Act, for example, which conferred upon Victoria its present form of government " (and these remarks apply equally to the New South Wales Act) ''the words Responsible Minister, or any equivalent terms, never once occur. Were it not for a marginal note, which forms no portion of the Act, not even a hint would be given by this statute of the important

COLONIAL GOVERNMENT IN AUSTRALIA. 45

changes Avhicli it was intended to effect." — Hearn's Government of England, pp. 8-9.

Sir Richard G. Baker, President of the Legislative Council of South Australia, has expressed a similar opinion as to the method and circumstances in which Responsible Government was introduced into the colonies. " It is evident," he writes, " that the enormous power exercised by the Ministry rests on a very small legal basis, and it is curious to note that this system of Responsible Ministry, that is, of advisers, theoretically responsible to the Governor and constitutionally and practically responsible to the Parliament, was introduced into Australia simply in pursuance of a few words contained in a despatch of Sir R. Peel to one of our colonial Governors, and that it was originally introduced into Canada simply in pursuance of a conversa- tion between Sir Francis Head and a Secretary of State for the Colonies." — Notes on the Constitution of South Australia, " Adelaide and Vicinity," p. 27.

The theory maintained by Dr. Heam, and by Sir Richard Baker, has not been concurred in by all the leading constitutional authorities. Mr. George Higinbotham (afterwards Chief Justice of Victoria) held the view, duringf his official career as Attornev-General of Victoria, that the existence of Responsible Government in a constitutional colony was dependent, not upon instructions to the Governor, but on the statute law under which the Constitution was established in such colony. These principles he afterwards affirmed judicially in the great constitutional case of Ah Toy r. Musgrove (1888), 14 V.L.R. p. 349. In his opinion the Imperial statute law was the sole source of the public rights of every dependency of the British Crown possessing powers of internal self-government. Those rights could not be legally derived from the commission and instructions issued by the Crown to successive Governors of a colony. The commission and instructions were issued to the Governor by Her Majesty on the advice of her Imperial Ministers, and the powers and commands contained in those instruments were as revocable as they were grantable by the Sovereign. — Id. p. 379. It was in the Constitution Acts and other Imperial legislation applicable to the colonies that the system of Executive administration, generally described as Responsible Govern- ment, could alone be found. The increased powers of legislation conveyed to New South Wales, Victoria, and the other colonies, in and by their Constitution Acts, necessitated the far greater change introduced by the same Acts into the system of government by the application to the enlarged functions of government of the new prin- ciple of Ministerial responsibility. Mr. Higinbotham did not acquiesce in the contention of Dr. Hearn and other learned constitutional jurists, that Responsible Government could not be found in the Constitution Acts of such colonies as New South "Wales and Victoria. On the contrary, he was able to find in those constitutional charters abundant evidences of the intention of their framers, ratified by the Imperial Parliament, to establish such a plan of Executive Government.

It was true thnt in those Constitutions the Cabinet was not mentioned; that the expression "Responsible Ministers" occurred only in the marginal note — which formed no part of the law — annexed

46 HISTORICAL INTRODUCTION.

to one of the sections of the Victorian Constitution (sec. 18) ; that mention was made of the Executive Council^ but nothing' Avas said about its legal constitution or personal composition; that the nature of Responsible Government was nowhere described ; that the extent of its application was nowhere expressly declared. But the Chief Justice considered that in sec. 37 of the Constitution Act of Victoria, which was drawn on exactly the same lines as sec. 37 of the Constitu- tion Act of New South Wales, there were provisions which assumed, if they did not originate, the operation of some plan of Ministerial Government. Both those sections declared that ''The appointment of all public oflfices hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds, as hereinafter mentioned, which appointments shall be vested in the Governor alone." The Constitution Acts of South Australia, Queensland, and Western Australia contained substantially similar sections. But sec. 18 of the Constitution Act of Victoria, and sec. 32 of the Constitution Act of South Australia — amended and enlarged by subsequent legislation — contained provisions which caused those Constitutions to go much further in the direction of express recognition and actual introduction than anything in the Constitution of New South Wales. Those sections enacted that a certain number of the officers of the Governments in those colonies, for the time being, should be members of the Parliaments created by the new Con- stitutions. The requirement of the presence in Parliament of a certain number of Ministers in charge of public departments has been gener- ally looked upon as one of the leading features of Responsible Govern- ment ; their presence in the parliamentary arena brings them into personal contact and direct communication with the representatives of the people, who may there interrogate them on questions of public interest and express their approval or disapproval of the manner in which those Ministers conduct the government of the country.

" These provisions most plainly, in my opinion, though indirectly, give adequate expression to an intention of the Legislative Council that the principle of Responsible Government should be established by law. In contrast with this power of appointment of responsible officers which is vested ' in the Governor alone,' all other powers and functions are vested either in the Governor, or in the Governor and Executive Council (sees. 49, 51, and 53), or in the Governor with the advice of the Executive Council (sec. 37). The provisions in these last-mentioned sections appear to apply to cases where, in addition to the advice, assistance, and approval of the responsible Ministers, the nature of the power to be exercised seems to require that that exercise should be formally recorded or publicly announced. There is no indication in the Act that it was designed to create a single power or function in the Governor, except the power of appointing his Ministers, as a personal power to be exercised on his own individual judgment or discretion, or otherwise than in accordance with the advice of those whom he selects to advise and carry into act and operation the consti- tutional exercise of the powers given to him by the statute law as the

COLONIAL GOVERNMENT IN AUSTRALIA. 47

appointee and representative of the Crown. The Imperial Government has never, I believe, even in the boldest of its attempts to interfere illegally with the Victorian Constitution, suggested that the Governor ought to exercise any of his statutory powers without receiving the advice of Her Majesty's Government for Victoria. It has only asserted for itself the right to disregard that advice, and to order the Governor, as its officer, to act in defiance of it. I think that the rule of responsibility applies to every one (if to any) of the powers of the Crown created by Statute in the Crown's representative, the Governor, and that none of them can be lawfully exercised except through and by the advice, or with the knowledge and approval, of the responsible Ministers appointed by the Governor. What are those powers ? Some of them are merely formal, and their exercise and the approval of Ministers would ordinarily be a matter of course (see sees. 8 and 32). Others are of a very different nature. Thus the appoint- ment to public offices (sec. 37), including the general control of the Public Service, is a power not only of the highest importance, but of a very large scope. Again, the power of convening and proroguing Parliament and of dissolving the Legislative Assembly (sec. 28) is one of large significance, and the exercise of it, undisturbed by any external influence, by the Ministers whom the Governor is pleased to retain in the service of the Crown as his advisers, is a matter of moment to the whole community as well as to political parties and the movements of opinion in Parliament. Sections 57 and 58 indicate, in my opinion, more clearly than all the others the intended scope and the legal and actual extent of the principle of Responsible Govern- ment established by the Constitution Act. It is from the powers of the Crown express and necessarily to be implied from these sections as well as from the powers of control over the Public Service, granted by sec. 37, that all the ordinary general functions of Responsible Government spring. From these powers the legal existence and the rightful exercise of those functions may, and, in my opinion, must be inferred. It has been seen that the Legislature obtained by the Act not only the right to dispose by legislation of the waste lands of the Crown, but also the control, for the use and benefit of the people of Victoria, by means of appropriations for specific purposes, of all the consolidated revenues derived from that and all other sources. This power covers, directly and indirectly, the whole field of Parliamentary action outside the field of general legislation." — Per Higinbotham, C.J., Ah Toy V. Musgrove, 14 V.L.R., 392-4.

On 22nd May, 1856, the first Parliament of Xew South Wales under the new Constitution was opened by Sir William T. Denison. The first Responsible Ministry was composed of Mr. (afterwards Sir) Stuart Alexander Donaldson, Colonial Secretary and Premier; Mr. Thomas Holt, Treasurer; Mr. (afterwards Sir) William Montagu Manning, Attorney-General ; Mr. J. B. Darvall, Solicitor-General ; Mr. George R. Nichols, Auditor-General; and Mr. W. C. Mayne, Representative of the Government in the Legislative Council.

Amexdment op the New Coxstitctiok. — The power conferred on the Parliament of New South Wales to alter the Constitution has not been very extensively exercised. The first amendment was made in

48 HISTORICAL INTRODUCTION.

1857, when a Bill was passed to repeal so much of the Constitution Act as required the concurrence of unusual majorities in the passing of Bills to alter the constitution of the Council or the number and apportionment of members of the Assembly. By section 15 of the Constitution the Legislature was authorized to alter the electoral districts and the electoral divisions of the Assembly, and to alter the apportionment of Representatives, provided that such alterations were passed by a majority of the Council and by two-thirds of the members of the Assembly. By section 36 the legislature was authorized to alter the law concerning the Legislative Council and to provide for the nomination or election of another Council, subject to the condition that such alteration was passed with the concurrence of two-thirds of the members of the Council and of the Assembly respectively. By the Act 20 Vic. No. 10, reserved on 20th January, 1857, proclaimed on 19th October, 1857, these unusual majorities were abolished, so that it is now competent for the Parliament of New South Wales to pass Bills to amend the Constitution in the same manner and by the same majorities of members as other laws for the good government of the colony, pi-ovided that such Bills must be reserved for the signifi- cation of the Queen's pleasure. By the Act 22 Vic. No. 20 (N.S.W.) section 20 of the Constitution Act, disqualifying ministers of religion from becoming members of Parliament — an inhibition notoriously directed against the late Dr. Lang — was repealed. By the same Act the number of members of the Assembly was increased and the qualification of the electors was lowered. By the Act 37 Vic. No. 7 (N.S.W.) the clause in the Constitution Act providing that the Assembly should continue for five years from the date of the return of the writs, subject to be sooner dissolved by the Governor, was repealed, and it was enacted that every future Assembly of New South Wales should continue for three years from the day of the return of the writs subject to be sooner dissolved by the Governor.

Reforms. — The structure and composition of the Legislative Council of New South Wales, as established by the Constitution Act, have not since been altered ; except that by the Constitution Act Amendment Act of 1890 (54 Vic. No. 1) the quorum was reduced from one-third to one-fourth of the members. There is no legal limit to the number of its members, but its average numerical strength is about 65. The qualifications of members are : male; 21 years; natural born or naturalized subject. The tenure of ofiice is for life, or until resigna- tion, or forfeiture by absence or other disability. There are now 125 members of the Legislative Assembly, each representing a single electorate. The suffrage is manhood ; every natural born or naturalized male subject, resident twelve months in the colony and three months in an electoral district, being entitled to an elector's right for the district. No elector can have more than one vote. Every holder of an elector's right is qualified as a candidate. Members of the Assembly receive £300 a year each ; members of the Council are unpaid.

Enlarged Leqislative Powers. — Under the provisions of Imperial Acts applicable to the colonies the legislative powers and functions of the Parliament of New South Wales, like those of the Parliaments of

COLONIAL GOVERNMENT IN AUSTRALIA. 49

the other Australian colonies^ are much larger than they appear on the face of the constitutional instruments. The Acts so applicable may be considered as contributory charters of self-government in Australia ; among tliem may be mentioned the following : —

1. Enabling the legislature of any British possession to make

provision for securing to British authors protection within such possession, and in such case authorizing Her Majesty to declare by Order in Council that so long as such pro- vision continues in force the prohibitions contained in the Copyright Act, 5 and 6 Vic. c. 45, are suspended as regards such colonv or possession. — Colonial Copvright Act, 1847j 10 and 11 Vic. c. 95.

2. Enabling the legislature of any British possession to pass

laws for the punishment of offences relating to the coinage. — Coinage Offences (Colonies) Act, 1851 ; 16 and 17 Vic. c. 48, s. 4.

3. Enabling the legislature of any British possession to apply

or adapt to any British ship, registered in such possession, any of the provisions of the Merchant Shipping Acts " which do not otherwise so apply," and providing that such law shall have effect throughout Her Majesty's dominions. — 17 and 18 Vic. c. 104, s, 288; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 264.

4. Authorizing the legislature of any British possession to

repeal any provision of the Merchant Shipping Acts (other than parts thereof which relate to emigrant ships) relating to ships registered in that possession. — 17 and 18 Vic. c. 104, s. 547 ; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 735.

5. Enabling the legislature of any British possession to make

laws for the trial and punishment of offences committed within such possession, but resulting in death on the sea, or beyond the limits of such possession. — Admiralty Offences (Colonial) Act, 23 and 24 Vic. c. 122 (28th August, 1860).

6. Empowering the legislative authority of any colony, with

the approval of Her Majesty in Council, to make laws for providing and maintaining vessels of war, and for raising and maintaining seamen for the naval defence of the colony, and for enforcing order and discipline among the men and officers whilst ashoi-e or afloat within the limits of the colony. — Colonial Naval Defence Act, 28 and 29 Vic. c. 14, s. 3. (7th April, 1865).

7. Repealing the old common law doctrine that colonial legis-

latures could not pass any law repugnant to the law of England, and enacting that no colonial law shall be void or inoperative on the ground of repugnancy to the law of England, unless the same be repugnant to some Act of the Imperial Parliament applicable to the colonies. —

50 HISTORICAL INTRODUCTION.

Colonial Laws Validity Act, 28 and 29 Vic. c. 63 (29th Jure, 1865).

8. Declaring the validity, throughout the empire, of laws made

by the legislature of any British possession establishing the legality of marriages contracted in any such posses- sion, provided that at the time of such marriage both of the parties thereto were, according to the law of England, competent to contract the same. — Colonial Marriages Act, 28 and 29 Vic. c. 64 (29th June, 1865).

9. Removing doubts as to the necessity of reserving for the

Queen's assent Bills passed by Australian legislatures, altering or repealing laws for the imposition of duties of customs.— 29 and 30 Vic. c. 74 (6th August, 1866).

10. Enabling the legislature of any British possession to provide

for the examination of, and to grant certificates of compe- tency to, persons intending to act as master, mate or engineer on board British ships. — 30 Vic. c. 11, s. 38; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 102.

11. Authorizing the legislature of any British possession to

regulate the coasting trade of that possession, subject to the condition that all British ships shall be treated in exactly the same manner as ships of the possession, and subject to Her Majesty's treaty obligations, with respect to ships of foreign states. — 32 and 33 Vic. c. 11, s. 4; re- enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 736.

12. Confirming the Acts of legislatures of British possessions in

imparting the privileges of naturalization to aliens within the limits of such possessions. — Naturalization Act, 33 and 34 Vic. c. 14, s. 16 (12th May, 1870).

13. Authorizing the legislature of any British possession to

make provision for carrying into effect the Imperial law relating to surrender of fugitive criminals, from foreign countries, suspected to be in such British possession. — Extradition Act, 33 and 34 Vic. c. 52, s. 18 (9th August, 1870).

14. Enabling the Parliaments of the Australian colonies to pass

laws imposing preferential and differential duties on goods, wares and merchandise, the produce of the Australian colonies. — Australian Colonies Duties Act, 36 and 37 Vic. c. 22 (26th May, 1873).

15. Enacting that where the legislature of any British possession

provides for the survey of and grants certificates for passenger steamers to the satisfaction of the Board of Trade, such certificates are to be .in force as if granted under the Imperial Act. — 39 and 40 Vic. c. 80, s. 17; re- enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 280.

16. Enacting that where any force of volunteers, or of militia,

or any other force, is raised in a colony, any law of the

COLOXTAL GOVERNMENT IN AUSTRALIA. 51

colony may extend to the officers, non-commissioned officers, and men belonging to such force, whether within or without the limits of the colony ; and that where any such force is serving with Her Majesty's regular forces, then so far as the law of the colony has not provided for the government and discipline of such force, the Imperial law shall apply. — Armv Act, 1881 ; 44 and 45 Vic. c. 58, s. 177.

17. Authorizing the legislature in any British possession to

constitute courts to make enquiries into charges of incom- petency or misconduct on the part of masters, mates or engineers of ships, or as to shipwrecks or other casualties affecting ships, in cases occurring within or outside the limits of such possessions. — 45 and 46 Vic. c. 76; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 478.

18. Enacting that where the legislature of any British possession

provides for the fixing and certifying of load lines on British ships registered therein, and such provision is satisfactory to Her Majesty, certificates given thereunder shall be as effective as if given under the Imperial Act. — 53 Vic. c. 9, s. 3; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 444.

(2) VICTORIA.

FoDXDATiox. — On 5th January, 1802, Lieutenant Murray, in com- mand of the Lady Nelson, whilst exploring the great indentation in the southern coast reported by Lieutenant Grant, discovered the heads leading into an expanse of inland water, to which he gave the name of Port King, in honour of Governor King, but which the Governor afterwards altered to Port Phillip, as a compliment to his predecessor, the founder of the Sydney settlement. On 9th March, " the united colours of Great Britain and Ireland " were hoisted on the ship and on the shores of the port, a volley was fired, and the place was taken possession of in the name of King George III. On 20th January, 1803, Mr. Charles Grimes, Surveyor-General of New South Wales, entered the port in the Cumherland, explored the coast line, and ascended the Yarra as far as Dight's Falls (Studley Park). During the same year Lieutenant-Colonel David Collins was sent from England to Port Phillip in charge of an expedition, consisting in all of 400 souls, with instructions to establish a penal settlement on the shores of the port. The first ship of the expedition, the Ocean, arrived on 7th October, and the second, the Calcutta, on 11th October. Collins was not satisfied with the place, and on 27th January, 1804, with the consent of the Sydney Government, he abandoned the attempt to form a settlement at Port Phillip, and removed his charges to Sullivan's Cove, on the Derwent, Tasmania.

52 HISTORICAL INTRODUCTION.

The Port Phillip District was first reached overland from Sydney by Hume and Hovell, in 1824. In November, 1834, Messrs. Edward and Francis Henty established a pastoral station at Portland. They are considered to have been the pioneer settlers of the southern part of the continent. In 1835, an association was formed in Van Diemen's Land to colonize Port Phillip. On 31st May, 1835, John Batman sailed up the Yarra. In the same year John Pascoe Fawkner followed. A settlement was formed on the banks of the Yarra, On 29th Sep- tember, 1837, Captain William Lonsdale arrived at Port Phillip, being appointed to act as Resident Magistrate ; with him was Captain Hobson, after whom Hobson's Bay was named. Captain Lonsdale selected the site on which was built a town that afterwards grew into the city of Melbourne. On 1st October, 1839, Mr. Charles Joseph La Trobe became the head of the Port Phillip community under the title of Superintendent, a post which he occupied for fifteen years ; Captain Lonsdale acted as secretary to the local Government.

In 1840, the territory of New South Wales was, for all purposes connected with the disposal of Crown lands, divided into three dis- tricts, known respectively as the North District, the Middle or Sydney District, and the Southern or Port Phillip District. The first of these Districts practically comprised all the lands north of latitude 32°, but it was expressly noted that its northern limits were not yet fixed. The second comprised nineteen counties, bounded on the north by the southern boundary of the first District and on the south by the southern boundaries of the counties of St. Vincent and Murray, " and thence by the rivers Murrumbidgee and Murray to the eastern boundary of the Province of South Australia." The third, or Port Phillip District, included all the lands to the south of the southern boundary of the Sydney District. — Jenks' Gov. of Vict., p. 40.

By the Act 5 and 6 Vic. c. 76 (30th July, 1842) New South Wales was granted a Legislative Council consisting of 30 members, 12 of whom were to be appointed by Her Majesty, and 18 to be elected by the -qualified inhabitants of the colony, the old Council was authorized to divide the colony into electoral districts for the return of elective members, but the Imperial Act specially provided that the District of Port Phillip, the town of Sydney, and the town of Mel- bourne should be electoral districts ; that the district of Port Phillip should return at least five members, the town of Sydney two members, and the town of Melbourne one member, and that for the purpose of the Act, the northern and north-eastern boundary of the Port Phillip District should be a " straight line drawn from Cape Howe 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." It was by this Act that the colony of Victoria, afterwards to be created, lost the Murrumbidgee as its northern boundary.

Separation.— By the Act 13 and 14 Vic. c. 59 (5th August, 1850), intituled " An Act for the better Government of Her Majesty's Aus- tralian colonies," it was provided '' that after such provisions as here- inafter mentioned shall have been made by the Governor and Council of New South Wales, and upon the issuing of the writs for the first election in pursuance thereof, as hereinafter mentioned, the territories

COLONIAL GOVERN^MENT IN AUSTRALIA. 53

now comprised within the said District of Port Phillip, incltiding- the town of Melbourne, and bounded on the north and north-east by a straight line drawn from Cape Howe to the nearest source of the river Murray, and thence by the course of that river to the eastern boundary of the colony of South Australia, shall be separated from the colony of New South Wales, and shall cease to return members to the Legislative Council of such colony, and shall be erected into and thenceforth form a separate colony, to be known and designated as the colony of Victoria." The Legislative Council of New South Wales was empowered to determine the number of members of which the Legislative Council of Victoria should consist. It was also authorized to pass an Electoral Act fixing the electoral districts for which the elective members should be returned.

The powers and functions of the Victorian Legislative Council were, by this Constitutional Act, similar to those of the re-organized Legislative Council of New South Wales and the newly constructed Councils of Van Diemen's Land and South Australia, viz., (1) to make laws for the peace, order, and good government of the colony; (2) to impose taxation, including the imposition of customs duties; (3) to appropriate to the public service the whole of the public revenue arising from taxes, duties, rates, and imposts. Her Majesty was authorized by letters patent to appoint a Court of Judicature to be styled '' the Supreme Court of the Colony of Victoria." The restric- tions on the powers and functions of the Legislative Council of Vic- toria were similar to those of the Councils of New South Wales, Van Diemen's Land, and South Australia, viz., (1) that no such law should be repugnant to the law of England; (2) that no such law should interfere with the sale and appropriation of the waste lands of the Crown within the colony ; (3) that no customs duties of a differential character should be imposed ; (4) that it should not be lawful for the Council to pass any Bill appropriating to the public service any sura of money for any purpose unless the Governor should have previously recommended that provision for such appropriation be made.

The qualitications of electors and of elective members of the pro- posed Legislative Council of Victoria were to be the same as those of the electors and elective members of the Legislative Council of New South Wales, under the Act 5 and 6 Vic. c. 76, as amended by 13 and 14 Vic. c. 59.

This Act was proclaimed on 11th January, 1851. The old Legis- lative Council of New South Wales met on 28th March for the purpose of making electoral and judicial arrangements required to bring the new Act into force in Victoria. Two Acts were passed specially concerning Victoria. The first was 14 Vic. No. 45 (N.S.W.), which provided that "all justices of the peace, and other oflicials holding office or commonly resident within the Port Phillip District at the passing of the Act, shall continue to act as though the Separation Statute had not been passed, until removed or re-appointed by the Gi-overnment of Victoria." The other Act was 14 Vic. No. 47 (N.S.W.), which provided that '"'the Legislative Council of Victoria shall consist of 30 members, 10 nominee and 20 elective."

These arrangements having been made, the old Legislative

54 HISTORICAL INTRODUCTION.

Council of New South Wales was dissolved and re-elected on the lower franchise. On 1st July, 1851, the writs for the election of 20 elective members of the Legislative Council of Victoria were issued. On 15th July Mr. La Trobe announced his appointment as Lieutenant- Governor of the colony. In this manner the colony of Victoria was called into existence and received the first pulsation of autonomous political life.

Political Peogress. — The Act of 1850, by the liberality of its provisions in creating so many new Australian Constitutions, as well as giving scope and room for the development of the best energies of the young Commonwealth, was a recognition, on the part of the Imperial Government and Parliament, of the success of the experi- mental legislation in British North America in 1840, and in the senior settlement of Australia in 1842. In one particular the Act of 1850 contained a very large and important grant of power to the newly-created legislatures. By section 32, it was lawful for the Governors and Legislative Councils of New South Wales, Victoria, Van Diemen's Land, South Australia, and Western Australia respec- tively to amend the provisions or laws for the time being in force, under the Act or otherwise, concerning the election of elective members of such Legislative Councils respectively, or the qualification of electors and elective members of the same ; or to establish in the said colonies respectively, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses. The only proviso to this power was that such bills should be reserved for the signification of Her Majesty's pleasure. It was under this section that a few years afterwards the present Constitu- tion Act of Victoria was drawn up and sent to the Imperial Govern- ment for ratification by the British Parliament. This was, indeed, an important concession. It was the first grant of power to the Australian colonists to alter the form and structure of their Constitu- tions, subject to Imperial control. Thus were continued the founda- tions of Parliamentary Institutions in Australia, commenced by the Act of 1842. They were truly miniature legislatures to start with, but it was certain that their progress and development would be guided by the natural laws of growth and evolution; and time has demonstrated the elasticity and vitality of the transplanted political system of the mother country.

The new Legislative Council of Victoria, partly nominated and partly elected, was convened for the despatch of business on 11th November, 1851. The official members were : — Mr. W. Lonsdale, Colonial Secretary; Mr. (afterwards Sir) W. F. Stawell, Attorney- General ; Mr. (afterwards Sir) Redmond Barry, Solicitor-General ; Mr. C. H. Ebden, Auditor-General; and Mr. R. W. Pohlman, Chair- man of the Court of Requests. Mr. J. F. Palmer was elected Speaker. In his inaugural speech to the Council the Lieutenant-Governor said : — " In now formally opening this first session, I would offer to you, and through you, to the inhabitants of the colony at large, my most hearty congratulations upon the event which, after much delay, has at length crowned your wishes. Under the provisions of the recent Imperial Act, and Her Majesty's favour, you meet here to-day

COLONIAL GO\rERNMENT IN AUSTRALIA. 55

as the representatives of the people of an independent colony of tlie British Empire, with power to watch over the general interests and to control your own affairs, which has hitherto been, from circum- stances, in a great measure denied to you ; and it is my earnest prayer to God that you may be endowed with wisdom and prudence, which are requisite for the due discharge of the important duties entrusted to you/'

The Xew Constitution'. — The next important stage in the constitutional history of Australia was that which was consummated by the attainment of complete local legislative independence coupled with complete local Executive authority. The Legislative Councils, partly nominated and partly elected, together with the system of personal government, were doomed to be swept away, and to give place to a more perfect type of legislature, and to a responsible administration according to the British model. The discovery of gold, which was announced to the world a few months after the separation of Victoria from New South Wales, soon began to attract a large and ever-increasing population to the shores of Australia, and new and exciting events followed one another in rapid succession. The legislature of New South Wales took the lead in the movement for an extension of Constitutional power, and the Home Government promptly and willingly agreed to grant the reform of the Constitution asked for.

Reference has been made to, and an extract given from. Sir -John Pakington's despatch to the Governor of New South Wales promising to give effect to the wishes of the Legislative Council of New South Wales, that a Constitution resembling that of Canada, based on a bi- cameral legislature, should be adopted, and suggesting that the Legislative Council should proceed to frame one. A similar despatch, dated 18th January, 1853, offering the same concessions, was received by the Lieutenant-Governor of Victoria. The Victorian Legislative Council appointed a select committee of twelve members, chosen by ballot, to consider and report on the best form of government for the colony. The committee subsequently brought up a report accompanied by a Draft Bill. On 25th January, 1854, the Bill was read a second time, committed and reported. On 24th March it was passed, and on the 28th it was reserved for the Queen's assent.

The Constitution, so sent to England, proposed to create a bi- cameral legislature, consisting of a Legislative Council, to be com- posed of 30 members, elected by qualified voters, and a Legislative Assembly, consisting of double that number, elected on a more liberal franchise. The Queen, with the advice and consent of this legislature, was authorized " to make laws in and for Victoria in all cases whatso- ever;" to impose and levy duties of Customs; to appropriate public revenue for specific purposes. All Bills for appropriating any part of the revenue or imposing any duty, rate, tax, rent, return, or impost, were required to originate in the Assembly and could be passed or rejected but not altered by the Council. The Assembly could not originate any vote, resolution, or Bill for the appropriation of the consolidated revenue for any purpose which should not have been first recommended by a message of the Governor to the Assembly. The

56 HISTORICAL INTRODUCTION.

appointment to public offices was to be vested in the Governor with the advice of the Executive Council, excepting in the case of officers liable to retire on political grounds, whose appointment was vested "in the Governor alone." Sec. 37. See p. 46, supra. The Bill also con- tained clauses similar to those of the New South Wales Bill, relating to the assent of the Governor to Bills and Her Majesty^s power to disallow the same ; relating to boundaries of the Australian colonies ; and provid- 'ng that it should not come into force until the control of the sale and appropi'iation of the waste lands of the Crown within the colony thould be vested in the legislature to be created. The legislature was authorized to amend the Constitution, subject to the condition that Bills altering the Constitution of the two Houses should be passed by an absolute majority in each House and should be reserved for the Queen's assent.

The Constitution, so drawn, granted powers to the proposed bi- cameral legislature in excess of the authority conferred by 13 and 14 Vic. c. 59. In this respect the Select Committee of the Victorian Council were influenced by the same political considerations as the Select Committee of the New South Wales Council. They wished to secure under the new Constitution " other and additional powers and functions " beyond those vested in the old Council. In so doing they ran the same risk of having the Royal assent withheld. In fact it was known that, owing to the excess of powers proposed to be granted by the Constitution, the Royal assent could not be legally given, and that fresh Imperial legislation would be required in order to legalize the Constitution. The powers and functions granted by the Bill were : —

1. To make laws in and for Victoria in all cases whatsoever.

2. To impose taxation, including duties of customs.

3. To appropriate revenue.

4. To legislate concei*ning the waste lands of the Crown.

5. To amend the Constitution of the Council and Assembly,

subject to certain conditions. Accompanying these grants were several restrictions and other provisions relating to electoral matters similar to those embodied in the New South Wales Bill. As the Bill contained matters in excess of the powers conferred by the Enabling Act, the law officers of the Crown advised that it was not competent for Her Majesty to assent to the Bill without the authority of Parliament. In order to enable that assent to be given, a Bill was brought into Parliament, to which the proposed Constitution was added as Schedule A ; amended, however, by the omission of clauses relating to the assent of the Governor to Bills, Her Majesty's power to disallow Bills, and respecting the boun- daries of the Australian colonies. It was intituled " A Bill to enable Her Majesty to assent to a Bill, as amended, by the legislature of Victoria to establish a Constitution in and for Victoria." Section 1 enabled Her Majesty to assent to the Bill. Section 2 repealed Imperial Acts inconsistent with the Constitution, and vested the entire management and control of the waste lands of the Crown in the new legislature. The provisions of former Acts relating to the disallow- ance of Bills were preserved. The new legislature was authorized to

COLONIAL GOVERNMENT IN AUSTRALIA. 57

repeal or alter all or any of the provisions of the reserved Bill snbject to the conditions therein prescribed.

Responsible Goverxment. — The Bill was passed and assented to on 16th July, 1855; it is known as the Victorian Constitution Statute; whilst the Act contained in the Schedule is known as the A^ictorian Constitution Act. The new Constitution was proclaimed on 23rd November, 1855. The first Responsible Government was composed of Mr. AV. C. Haines, Chief Secretary; Mr. (afterwards Sir) W. F. Stawell, Attorney-General ; Mr. (afterwards Sir) C. Siaden, Treasurer; Mr. C. Pasley, Commissioner of Public Works; Mr. H. C. E. Childers, Commissioner of Trade and Customs; Mr. (afterwards Sir) A. Clarke, Surveyor-General ; and Mr. (afterwards Sir) R. Molesworth, Solicitor- General; Mr. (afterwards Sir) Wm. H. F. Mitchell (without ofl&ce). The Ministers were all returned to seats in the first elections for the Legislative Assembly, which took place in the spring of 1856; they met the new Parliament as a Cabinet, and resigned on the passing of an unfavourable resolution upon the subject of the Estimates, in March, 1859. Mr. (afterwards Sir) John O'Shanassy, the mover of the resolution, was then, in accordance with Cabinet practice, invited to form a Ministry. — Jenks' Gov. of Victoria, p. 215.

Enlarged Legislative Powers. — The Constitution of Victoria, like that of the other Australian colonies, was subsequently enlarged and impi'oved by further grants of power, contained in Imperial Acts applicable to the colonies, of which a summary has been given, under the heading of "Xew South Wales," pp. 49-51, tftipra.

Reforms. — By the Legislative Council (Reform) Act, 1881 (45 Vic. No. 702), the number of members of the Council was increased from 30 to 41 ; and by the Act 52 Vic. Xo. 995, passed in 1888, the number was increased to 48, distributed among the fourteen provinces. The term of membership has been reduced from ten years to six years, and the qualification of members and electors has been lowered. Members of the Council must be of the full age of 30 years, natural born or naturalized subjects, and possessed of freehold property in Victoria of the annual value of £100. Electors of the Council must be adult males, natural born or naturalized subjects, and possessed of a qualification either (1) as freeholders or mortgagors in possession of land of the annual value of £10, or leaseholders to the annual value of £25; or (2) as graduates, members of the learned professions, or mili- tary or naval officers. No property qualification is required for mem- bership of the Assembly ; members of that House are paid at the rate of £300 per annum for their services. The franchise for the Assembly is manhood; every natural-born or naturalized male subject of the age of 21 years, if resident for 12 months in Victoria and for one month in an electoral district, is entitled to be enrolled as a voter for that district. Every such person is also entitled to vote in every electoral district in which he is seised in fee of lands worth £50, or of the annual value of £5, or in which his name is entered on a municipal roll as a ratepayer. By the Act 22 Vic. No. 89 (1859), the duration of the Assembly was reduced from five years to three years. The number of members of the Assembly has been increased from 60 to 95.

Constitutional Struggles. — Since the adoption of the Victorian

58 HISTORICAL INTRODUCTION.

Constitution it has been subjected to some severe strains, consequent on disputes between the two Houses respecting their powers in matters of taxation and appropriation. During those controversies questions of great Constitutional importance were raised and dis- cussed. Among these may be mentioned the action of the Assembly in tacking the proposed new tariff to the annual Appropriation Bill in 1865; its rejection by the Council and the consequent deadlock; the insertion of the proposed grant to Lady Darling in the Annual Appro- priation Bill in 1867; its rejection by the Council and consequent deadlock ; the insertion of provision for payment of members in the annual Appropriation Bill of 1877 ; its rejection by the Council and the consequent deadlock, leading to ^' Black Wednesday '^ dismissals; the Victorian delegation to England in October, 1878, and Sir Michael Hicks-Beach's despatch of 3rd May, 1879. In that famous despatch the Colonial Secretary said : —

" I observe that the address of the Legislative Assembly of Feb- ruary 14th, 1878, dwells almost exclusively on the necessity of securing to that House sufficient financial control to enable adequate supplies to be provided for the public service, and it is prominently ui'ged in Mr. Berry's letter of February 26th, in proof of the necessity for finding some solution of the present constitutional difficulty, that ' scarcely a year passes but it becomes a question whether the supplies necessary for the Queen's service will be granted.' But this difficulty would not arise if the two Houses of Victoria were guided in this matter, as in others, by the practice of the Imperial Parliament, the Council following the practice of the House of Lords, and the Assembly that of the House of Commons. The Assembly, like the House of Commons, would claim and in practice exercise the right of granting aids and supplies to the Crown, of limiting the matter, manner, measure, and time of such grants, and of so framing the Bills of Supply that these rights should be maintained inviolate ; and as it would refrain from annexing to a Bill of Aid and Supply any clause or clauses of a nature foreign to or different from the matter of such a Bill, so the Council would refrain from any steps so injurious to the public service as the rejection of an Appropriation Bill." — Todd, Par. Gov. Col., 2nd Ed., p. 746.

(3) TASMANIA.

Foundation. — This island, which down to the year 1853 was known as Van Diemen's Land, was, until its circumnavigation by Flinders and Bass in 1798, thought to be connected with the main- laud. In 1803, in consequence of the presence of French exploring vessels in Australian water.s, an apprehension was felt that the French meditated the annexation of unoccupied territory along the Australian coast. In order to remove any impression that Van Diemen's Land was unclaimed by the British nation, the Sydney Government decided to formally take possession of it. Accordingly Governor King despatched Lieutenant John Bowen to the Derwent in charge of the Albion and

COLONIAL GOVERNMENT IN AUSTRALIA. 59

the Lady Nelson, which conveved a number of soldiers and prisoners thither to form the nucleus of a settlement. The pioneering party anchored off Risdon Cove on the left bank of the Derwent on 12th September, 1803. In 1804, Colonel David Collins abandoned an attempt to form a settlement on the shores of Port Phillip, and removed with his charges to the Derwent. Not approving of the site chosen at Risdon Cove by Bowen, he selected another one on the south bank of the Derwent, known as Sullivan's Cove, which in after years grew into the city of Hobart, so named after Lord Hobart, the Secretary of State for the colonies. In 1804, Collins superseded Bowen as commandant of the Derwent settlement. In the same year Colonel Patterson, by direction of Governor King, planted a camp at George Town on the Tamar, but it was subsequently removed to a better situation at York Town, and eventually to the present site of Launces- ton. In 1805, it was decided to abandon the prison settlement on Norfolk Island, and some of the free colonists were transferred to the Derwent, where " New Norfolk " was founded.

Separation. — By Section 44 of the Act 4 Geo. lY. c. 96 (19th July, 1823), intituled ''An Act to provide . . . for the better administration of Justice in New South AYales and Yan Diemen^s Land," the Crown was empowered to constitute and erect the island of Yan Diemen's Land into a separate colony independent of New South Wales. On the 13th October, 1823, a charter of Justice was issued by the Crown instituting a Supreme Court for Yan Diemen's Land. Mr. John Lewis Pedder became the first Chief Justice of the colony. The Court was opened for business on 24th May, 1824. Pursuant to an Order in Council dated 14th June, 1825, the separation and independence of Yan Diemen's Land were proclaimed. The new colony then received a Lieutenant-Governor, an Executive Council, and a Legislative Council of its own. The Governor of New South Wales was entitled the " Captain-General and Governor-in-Chief " of the eastern part of the continent, and the Lieutenant-Governor of Yan Diemen's Land exercised all the powers and functions of Governor when the Governor of New South Wales was not present on the Island. The Executive Council consisted of the Lieutenant-Governor, the Chief Justice, the Colonial Secretary, the Colonial Treasurer, and the Chief Military Officer. The Legislative Council consisted of seven members nominated by His Majesty, its functions, under sec. 24 of the Imperial Act, being to make laws and ordinances for the peace, welfare and good government of the colony, provided that such laws were not repugnant to the law of England.

By the Act 9 Geo. lY. c. 83 (28th July, 1828), the Crown was authorized to re-model and improve the Supreme Courts of New South Wales and Yan Diemen's Land. The remaining sections of the Act providing for the constitution, appointment, and powers of the Legis- lative Councils in and for both colonies, and providing for the intro- duction and operation of " all laws and statutes in force within the realm of England," were made applicable alike to New South Wales and Yan Diemen's Land. See " New South Wales," pp. 37-8, supra.

The Act 5 and 6 Yic. c. 76 (30th July, 1842), intituled "An Act for the Government of New South Wales and Yan Diemen's Land,"

60 HISTORICAL INTRODUCTION.

created a new Legislative Council for New South Wales^ but it did not do so for Van Diemen's Land. The whole of the provisions of that Actj with several minor exceptions, were confined to New South Wales.

First Eepresentative Legislature. — For their first instalment of the Representative System of Government, the people of the southern island had to wait till the passing of that important Act 13 and 14 Vic. c. 59 (1850), intituled " An Act for the better government of Her Majesty's Australian colonies." By section 7 of this Act, it was pro- vided that the legislature already existing in Van Diemen's Land, under the Act of 1828, might establish within the colony a Legislative Council, to consist of not more than 24 members, of whom one- third should be nominated by Her Majesty and the remainder elected by the inhabitants of the colony. Upon the issue of the writs for the election of the new Legislative Council, all prior legislation relating to the constitution, appointment and powers of the old Legislative Council should be repealed. The Governor of Van Diemen's Land, with the advice and consent of the new Legislative Council so estab- lished, had authority to make laws for the peace, welfare and good government of the colony; to appropriate to the public service the whole of the revenue arising within the colony from taxes, duties, rates and imposts, and to impose duties of customs. The Council, however, could not pass any laws repugnant to the law of England, or interfere in any manner with the sale or appropriation of the waste lands of the Crown ; nor could it pass any Bill appropriating to the public service any sum of money, unless the Governor first recom- mended that provision for the appropriation should be made (sec. 14) .

Section 7 of this Act was an enabling section, valuable in its immediate grant of power, but especially valuable as a precedent, showing the inclination of the Imperial Government to entrust the people of the colonies not only with representative institutions, but also with the power of drafting their own constitutional instruments. The old Council of 1828 was to establish the new Council and make arrangements for dividing the colony into convenient electoral dis- tricts. The qualifications of members and of electors for the new Council were made similar to those of the members and electors of the Legislative Council of New South Wales, under 5 and 6 Vic. c. 76 as amended by 13 and 14 Vic. c. 59.

The New Constitution. — During the governorship of Sir William Denison, the new Legislative Council of Van Diemen's Land, in the exercise of power conferred by 13 and 14 Vic. c. 59 s. 32, proceeded to draft a Constitution "for the establishment of the Parliament of Van Diemen's Land." It was proposed that the new Parliament should consist of a Legislative Council and a House of A.ssembly in place of the existing Council. The Council was to consist of 15 members, elected by the qualified voters of the colony. The House of Assembly was to consist of 30 members elected on a more popular franchise than that of the Council. Bills for appropri- ating any part of the revenue, or imposing any tax, rate, duty, or impost, were required to originate in the Assembly, and the Assembly could not originate or pass any vote, resolution, or Bill for the appro-

COLONIAL GOVERNMENT IN AUSTRALIA. 61

priation of any part of the public revenue for any purpose which should not have been first recommended by the Governor to the House.

The Bill so drawn did not, on its face, disclose the powers and functions of the proposed bi-cameral legislature. For those powers and functions reference has to be made to sec. 14 of the Act 13 and 14 Vic. c. 59, which defines the powers and functions of the Legisla- tive Council created under that Act. The bi-cameral legislature created to replace that Council could, under sec. 32, exercise only " the powers and functions of the Legislative Council for which the same may be substituted." Xo law-making power was ever given to this bi-cameral legislature, except by reference, and to this day the laws of Tasmania are made in pursuance of the powers given by the original Enabling Act (13 and 14 Vic. c, 59), and not by the so-called Constitution. In fact it is not a Constitution ; it is a graft on, or a development of a pre-existing Constitution, viz., the Enabling Act 13 and 14 Vic. c. 59, sees. 7, 14, and 32. See Notes on the Constitution of South Australia by the Hon. Sir R. C. Baker, p. 10.

Eesponsible Government. — The Bill so drawn, and called " the Constitution," was passed by the Legislative Council on 31st March, 1 854, and was reserved by the Lieutenant-Governor for the significa- tion of Her Majesty's pleasure. It was assented to and proclaimed on 24th October, 1856, and the first Parliament was opened on 2nd December, 1856. Sir Henry Edward Fox Young was appointed the first Governor-in-Chief of the colony under the new system of Respon- sible Government. The first Responsible ]\Iinistry was composed of Mr. William T. X. Champ, Colonial Secretary and Premier ; Mr. T. D. Chapman, Colonial Treasurer ; Mr. F. Smith, Attorney-General ; Mr. J. W. Rogers, Solicitor-General ; Mr. H. F. Anstey, Secretary for Lands and Works ; Mr. W. E. Nairn (without ofiice) .

Enlarged Legislative Powers. — At about the same time an Imperial Act was passed (18 and 19 Vic. c. 56) authorizing the legis- lature of each of the Australian colonies to sell, dispose of, and legis- late concerning the waste lands of the Crown in the colony. In 1865 the Colonial Laws Validity Act (28 and 29 Vic. c. 63) removed the common law restriction which prevented colonial legislatures from passing any law repugnant to the law of England. In 1875 the pro- hibition contained in the Act 13 and 14 Vic. c. 59, preventing colonial legislatures from passing any law providing for the imposition of differential duties, was by the Australian Colonies Duties Act (36 and 37 Vic. c. 22) abolished, as far as intercolonial duties were concerned. Other Imperial Acts applicable to the colonies and enlarging the powers of the Parliament of Tasmania, in common with those of the other Australian Parliaments, are specified under the heading of "New South Wales," pp. 49-51, supra.

Change of Name. — In the year 1853, on the acquiescence of the Imperial Government in the cessation of transportation (finally abolished in 1857 by 20 and 21 Vic. c. 3), the name "Tasmania" was generally and voluntarily adopted instead of Van Diemen's Land. A despatch from the Duke of Newcastle, g^^■^ng the approval of the Colonial Office to the change, was published in the Gazette of 3rd May of that year. But it was not until an Act, 19 Vic. No. 17, was

62 HISTORICAL INTRODUCTION.

passed in December, 1855, that the change was legalized. This is intituled " An Act to obviate any doubts which might otherwise arise from the change in the name of the colony of Van Diemen's Land to Tasmania," and it came into operation on 1st January, 1856.

Reforms. — There are at present 18 members of the Legislative Council of Tasmania. The qualifications of members of the Council are : male ; 30 years ; natural born or naturalized subjects ; resident three years in the colony. The tenure is six years ; one-sixth of the members retiring each year. The qualifications of electors for the Council are : male ; 21 years ; natural born or naturalized subjects, possessed of freehold estate of the annual value of £15 or leasehold estate of the annual value of £30 ; or University graduates, barristers, solicitors, or medical pi'actitioners. The qualifications of electors of the House of Assembly, of which there are 37 members, are : male ; 21 years; natural born or naturalized subjects; owners or occupiers of property whose names appear on an assessment roll in the district for which the vote is claimed or who are in receipt of an income of £40 per annum, and who have continuously resided in the district for over twelve months. In the city districts of Hobart and Launceston a modification of the Hare system of preferential voting is in force. Members of both Houses receive £100 per year each.

In Tasmania the elective Legislative Council has claimed absolute equality of power with the Legislative Assembly, except in the origination of Money Votes. Not only has it claimed, but it has been permitted, to amend Tax Bills, Supply Bills, and even Bills for the appropriation of Supplies for the annual services of the Government.

(4) SOUTH AUSTRALIA.

First Statutory Authority. — This province originally comprised that part of the colony of New South Wales lying between the meridians of 132° and 141° of east longitude, bounded on the south by the Southern Ocean, and on the north by 26° parallel of south latitude. By the Act 24 and 25 Vic. c. 44, a strip of territory, com- prising 80,000 square miles, lying between South Australia and Western Australia, called "no man's land," was on 10th October, 1861, added to the province, thus extending its western limits to 129° east longitude, the former western boundary of New South Wales. On 6th July, 1863, the vast tract of country known as the Northern Territory, formerly a part of New South Wales, was, by letters patent, added to the province.

In 1829, Mr. Edward Gibbon Wakefield published a pamphlet under the title of " A Letter from vSydney," in which he propounded a new system of colonization, the essence of which was that the Crown should sell the waste lands of Australia at substantial prices for cash and apply the proceeds to the promotion of immigration and the making of roads. In 1831, a company was formed in England with the object of promoting systematic colonization in South Australia on the lines laid down by Mr. Wakefield. Objection was taken to giving

COLONIAL GOVERNMENT IN AUSTRALIA. 63

legislative power to an irresponsible company, and the scheme fell through. Amended proposals were afterwards submitted to the Imperial Government, and on 15th August, 1834, the Act 4 and b Will. IV. c. 95 was passed, intituled " An Act to empower His Majestv to erect South Australia into a British possession or province, and to provide for the colonization thereof." This Act enabled His Majesty, with the advice of the Privy Council, to erect and establish South Australia into a British province and to authorize and empower one or more persons resident in the province to make, ordain, and establish such laws, institutions, and ordinances, to impose such duties and taxes, and to appoint such officers and to constitute such courts as might be necessary for the peace, order, and good govern- ment of the people of the province. It also empowered the King, with the advice of the Privy Council, to appoint colonization com- missioners, who were to have the control of the Crown lands. Power was given to make orders and regulations for the survey and sale of the lands, and to employ portion of the money so derived in conducting the immigration of labourers from Great Britain. In the exercise of these powers the province was erected and established, and a Governor, a Judge, seven Commissioners, and other officials were appointed. The Governor, with the concurrence of the Chief Justice, the Colonial Secretary, and the Advocate-General, or two of them, was authorized to make laws and impose taxes.

Captain (afterwards Admiral Sir) John K. H. Hindmarsh, R.N., was appointed the first Governor; Colonel Light, Surveyor-General; Colonel Torrens, Chairman of the Commission in England ; Mr. (after- wards Sir) James Hurtle Fisher, Resident Commissioner; Colonel Goudge, Colonial Secretary ; Sir J. W. JefFcott, Judge ; Mr. Charles Mann, Advocate-General ; Captain Thomas Lipson, Naval Officer ; Mr. George Stevenson, Governor's Secretary and Clerk of Council.

The first ship despatched to South Australia by the Commissioners was the Cygnet, which in July, 1836, arrived at Kangaroo Island, where there was a small whaling station. Among the passengers was Mr. (afterwards Sir) George Strickland Kingston, who was one of a party of survey officers. The ships Duke of York and Lady Mary Pelham, conveying immigrants, sailed in February, 1836, and arrived at Kangaroo Island in August following. Shortly afterwards the Rapid arrived with an additional survey party under Colonel Light. Xot satisfied with Kangaroo Island, he searched along the main land for a site suitable for the settlement. A tract on the Torrens Eiver was eventually selected at a suitable spot. It was called Adelaide in honour of the Queen of William IV. On 28th December, 1836, Governor Hindmarsh arrived in the Bufalo. He issued a proclama- tion at Glenelg, announcing the establishment of the Government. Thus began colonization in South Australia.

A Crown Coloxt. — In May, 1841, the settlement being in con- siderable financial difficulties, Governor Gawler was recalled, being succeeded by Captain (afterwards Sir) George Grey. The British Government decided to lend the colony sufficient money to pay its debts, to re-model the system of government and to abolish the colonization commission. South Australia then became a Crown

64 HISTORICAL INTRODUCTION.

colony. In 1842 the Act 5 and 6 Vic. c. 61 was passed, intituled " An Act to provide for the better government of South Australia." Her Majesty was empowered to constitute a nominated Legislative Council consisting of the Governor and seven other persons resident therein, with power to make laws for the government of the colony.

That system of government continued in force until the inaugu- ration of a new scheme under the Constitutional Act, 13 and 14 Vic. c. 59 (5th August, 1850), already referred to. Section 7 of that Act authorized the legislature, then by law established in South Australia, to establish a Legislative. Council consisting of not more than 24 members, of whom one-third were to be appointed by Her Majesty, and the remainder were to be elected by the qualified inhabitants. Section 14 gave the Governor, with the advice and consent of this Legislative Council, power to make laws for the peace, Avelfare, and good government of the province, and to appropriate to the public service the Avhole of the revenue arising from taxes, duties, rates, and imposts, provided that no such law should be repugnant to the law of England, or interfere with the sale or appropriation of the waste lands of the Crown. The qualifications of members and electors of the new Council were to be tlie same as those of the members and electors of the Legislative Council of New South Wales, under the Act 5 and 6 Vic. c. 76, as amended by 13 and 14 Vic. c. 59. The Council could not pass any law appropriating to the public service any sum of money unless the Governor should first recommend to the Council that provision should be made for such appropriation. On 21st July, 1851, the Legislative Council, consisting of 24 members, was constituted.

The New Constitution. — In 1853 the Legislative Council of South Australia, in pursuance of the power conferred by sec. 32 of the Act 13 and 14 Vic. c. 59, passed a Bill to establish a bi-cameral legislature for South Australia, consisting of a Legislative Council of not less than 12 members to be nominated by the Crown, and a House of Assembly of 36 members to be elected by the inhabitants. The qualifications of electors and members were defined in the Bill, which, inter alia, contained a provision limiting the right of the Crown in the disallowance of Bills. The Bill was passed by the Council and reserved for the Queen's assent, which was refused on the ground that its provision limiting the Crown's right of disallowance of Bills was in excess of the power conferred in sec. 32.

On 15th August, 1855, the old Council of 1851 was dissolved by proclamation, and a new Council was duly constituted, partly by election and partly by nomination. In the meantime a copy of the Constitution which had been passed by the Tasmanian Legislative Council was forwarded by the Secretary of State for the Colonies to the Governor, Sir Richard Graves McDonnell, with an intimation that a Bill drawn on similar lines would be sanctioned. A second Bill to create a bi-cameral legislature for South Australia was then introduced into the newly-constituted Council. It provided for the creation of two elective Houses to take the place of the Council created by the Act 13 and 14 Vic. c. 59. This Bill was to be called a Constitution Act. Like its Tasmanian model, however, it conferred no law-making

COLONIAL GOVERNMENT IN AUSTRALIA. 65

power on the bi-cameral legislature, except by reference. In order to ascertain the principal legislative powers and functions of the Par- liament of Soutb Australia, reference has to be made to the Act 13 and 14 Yic. c. 59, defining the legislative powers and functions of the Council for which it was substituted.

According to that Act the Parliament was authorized to make laws for the peace, order, and good government of South Australia; to raise revenue by various methods of taxation, including the impo- sition of duties of customs, and to appropriate the public revenue for public purposes. By the proposed new Constitution all Bills for appropriating any part of the revenue of the province, or for imposing, altering, or repealing any rate, tax, duty, or impost, were required to originate in the House of Assembly. Neither House could pass any vote, resolution, or Bill for the appropriation of any part of the revenue for any purpose, unless the Governor should have first recom- mended to the House of Assembly that provision should be made for such appropriation. The appointment to all public offices under the Government of the province was vested in the Governor, with the advice and consent of the Executive Council, except the appointment of certain political officers, required to be members of Parliament, whose appointment and dismissal was vested in the Governor alone. After the first general election no person could hold the office of Chief Secretary, Attorney-General, Treasurer, Commissioner of Crown Lands, or Commissioner of Works, for any period longer than three months, unless he were a member of the Council or of the House of Assembly. This Bill, though described as a Constitution, was in fact not a Constitution, but, like that of Tasmania, a graft on, or a develop- ment of a pre-existing Constitution. — Sir R. C. Baker, Notes on the Constitution of South Australia, " Adelaide and Vicinity," p. 10. It was passed by the Council on 4th January, 1856, and was reserved by the Governor for the signification of the Queen's pleasure. It received the Royal assent, and was proclaimed on 24th October, 1856.

ExLAKGED Legislative Powers. — At about the time when the Bill received the Royal assent, the Imperial Act (18 and 19 Vic. c. 56) w:is passed, authorizing the legislature of each of the Australian colonies to sell, dispose of, and legislate concerning the waste lands of the Crown in the colony. In 1865, the Colonial Laws Validity Act (28 and 29 Vic. c. 63) removed the common law restriction which prevented colonial legislatures from passing any law repugnant to the law of England. In 1873, the prohibition contained in the Act 13 and 14 Vic. c. 59, preventing colonial legislatures from passing any law providing for the imposition of differential duties, was by the Aus- tralian Colonies Duties Act (36 and 37 Vic. c. 22) abolished as far as intercolonial duties were concerned. A list of other Imperial Acts enlarging the powers of the Parliament of South Australia, in common with those of the Parliaments of the other Australian colonies, will be found under the heading of " New South Wales," pp. 49-51, supra.

Responstblk Government. — The election of members of the two new Houses took place in March, 1857. The first session of the new Parliament commenced on 22nd April, 1857, during the Governorship of Sir Richard Graves McDonnell. The first Responsible Ministry

66 HISTORICAL INTRODUCTION.

was formed by Mr. B. T. Finnis, Chief Secretary, and his colleagues were Mr. R. D. Hanson, Attorney-General ; Colonel E. E. Torrens, Treasurer ; Mr. C. Bonney, Commissioner of Crown Lands and Immi- gration ; and Captain A. H. Freeling, Commissioner of Public Works, succeeded by Mr. (afterwards Sir) Samuel Davenport. Mr. James Hurtle Fisher was appointed President of the Council ; and Mr- George Strickland Kingston first Speaker of the House of Assembly.

Eblations op the Two Houses. — In 1857, a dispute arose between the two Houses of the South Australian Parliament as to their respective powers in dealing with Money Bills. A Bill to repeal certain duties of tonnage was passed by the Assembly and sent to the Council. The Council amended it as it would an ordinary Bill. Th& Bill as amended was sent back to the Assembly, which raised a ques- tion of privilege. The Assembly contended that the Council had no right to modify any Money Bill, but that it could only either pass or reject such a Bill. The Council replied that it had an undoubted right to amend all Bills whatsoever sent up to it by the Assembly. The dispute was eventually settled by a compromise, commonly called *' the Compact of 1857," which was adopted by resolutions of both Houses. This " Compact " defines those Bills, which the Council cannot amend in the ordinary way, as being " all Bills the object of which shall be to raise money, whether by way of loan or otherwise,. or to warrant the expenditure of any portion of the same," and pro- vides " that it shall be competent for the Council to suggest any alteration in any such Bills, except that portion of the Appropriation Bill which provides for the ordinary annual expenses of the Govern- ment."

In 1881, an Act to amend the Constitution of South Australia (No. 236) was passed, which provided that " Whenever any Bill for any Act shall have been passed by the House of Assembly during any session of Parliament, and the same Bill, or a similar Bill with sub- stantially the same objects and having the same title, shall have been passed by the House of Assembly during the next ensuing Parliament, a general election of the House of Assembly having taken place between such two Parliaments, the second and third reading of such Bill having been passed in the second instance by an absolute majority of the whole number of members of the said House of Assembly, and both such Bills shall have been rejected by, or fail to become law iu consequence of any amendments made therein by the Legislative Council, it shall be lawful for, but not obligatory upon, the Governor of the said province, by proclamation to be published in the Govern- ment Gazette, to dissolve the Legislative Council and House of Assembly, and thereupon all members of both Houses of Parliament shall vacate their seats, and members shall be elected to supply the vacancies so created; or for the Governor to issue writs for the election of one, or not more than two, new members for each district of the Legislative Council : Provided always that no vacancy, whether by death, resignation, or any other cause, shall be filled up while the total number of members shall be 24 or more ;" and that " in the event of the Council being dissolved, six members shall be elected for each of the said districts, and the names of such members shall

COLONIAL GOVERNMENT IN AUSTRALIA. 67

be placed on the roll of members for the said districts in the order provided for in Section 12 of this Act, and thereafter the several periodical retirements of members referred to in Sections 8 and 13 of this Act shall date from the daj of their election.'^ Hitherto no double dissolution has taken place under this section.

Reforms. — Bv the Constitution Amendment Act, 1894 (Xo. 613, assented to in 1895), the South Australian Parliament granted to women possessing the necessary qualification the right to vote for members of both Houses of Parliament.

The Legislative Council of South Australia at present is com- posed of 24 members who are theoretically elected for nine years. Every three years eight members whose names stand first on the roll retire and are eligible for re-election. The qualifications of members of the Council are : male ; 30 years ; natural-born or naturalized subjects ; resident in the Province for three years if natural-born, and five years if naturalized ; no property qualification. The quali- fications of electors for the Council are : adults ; natural-born or naturalized subjects ; ownership of freehold property of the clear value of £50 ; or ownership of leasehold estate of the clear annual value of £20; or occupation of a dwelling house of the clear annual value of £25. The Assembly consists of 54 members, elected for a period of three years, subject to be sooner dissolved by the Governor. They, as well as members of the Council, are entitled to £200 per year each for their services. Manhood suffrage for Assembly elections was adopted in 185(3 ; and in 1895 the franchise was extended to women. Under the Electoral Code, 1896, all British subjects of the age of 21 years, inhabitants of South Australia, who have been registered upon any Assembly roll for six months, may vote for members of the Assem- bly. There is no plural voting ; and provision is made for absent electors to poll their votes.

(.5) WESTERN AUSTRALIA.

First Statutory Authority. — During the French scare of 1826, when the French were suspected of designs to annex unoccupied portions of the Australian continent, Governor Ralph Darling des- patched from Sydney a detachment of the 39th Regiment with a number of convicts, in all seventy-five persons, in command of Major Lockyer, to occupy King George's Sound, with a view to taking possession of the western part of the continent. In 1827-8, Captain James Stirling, in H.M.S. Success, surveyed the coast from King George's Sound to Swan River, and being favourably impressed with its suitability for settlement, he recommended the formation of a colony there. In 1829, Captain Fremantle, in H.M.S. Challenger, was sent to do pioneering work ; he hoisted the British flag on a spot near the mouth of Swan River, which now bears his name. On 1st June, 1829, Captain (afterwards Sir) James Stirling arrived at Swan River in the Parmelia, with 800 intending settlers, from which date the history of the colony commences. Captain Stirling was the first Lieutenant-Governor, and the ofl&cials associated with him were : —

68 HISTORICAL INTRODUCTION.

Mr. Peter Brown, Colonial Secretary; Lieutenant J. S. Howe, R.N., Surveyor ; Mr. C. Sutherland, Assistant-Surveyor ; Mr. H. Morgan, Storekeeper ; Mr. W. Shilton, Clerk to the Secretary ; Mr. J. Drum- mond. Agriculturist; and the Rev. J. B. Wittenoom, first colonial Chaplain.

In the same year the first Imperial Act applicable to Western Australia was passed, viz., 10 Geo. IV. c. 22. It was intituled "An Act to provide until the 31st day of December, 1834, for the govern- ment of His Majesty's settlements in Western Australia, on the western coast of New Holland." It will be noticed that the name " Australia," first suggested for the continent in 1814 by Matthew Flinders, is here used and for the first time sanctioned by an Imperial Act. See p. 33, supra. By that Act the King, with the advice of the Privy Council, was empowered to make, ordain, and to authorize any three or more persons resident within the settlements, to make, ordain, and constitute laws, institutions, and ordinances for the peace, order, and good government of His Majesty's subjects and others within the settlements.

In 1831 Captain Stirling was appointed " Governor and Comman- der-in-Chief of His Majesty's settlements on the west coast of Australia," and, by letters patent. Vice- Admiral, with authority from Cape Londonderry (lat. 13° 44' S.) to West Cape Howe, in lat. 35° 8' S., and from Dirk Hartog Island (long. 112° 52' E.) to long. 129° E. He was authorized to appoint an Executive Council, to provide for the defence of the colony, to institute local government and dispose of the land according to British law. The members of the first Council were : — Colonial Secretary and Military Commander, Captain Irwin ; Surveyor-General and Advocate-General, Mr. G. F. Moore : Commissioner of Civil Courts and Chairman of Sessions, Mr. W. H. Mackie; Resident Magistrates, Mr. G. Leake, Mr. H. Whitfield, Colonel J. Molloy, and Sir R. Spenser. Under the Act of George IV., a Legislative Council was formed consisting of members of the Execu- tive Council and two nominated members, the Governor being Presi- dent and Mr. (afterwards Sir) Luke S. Leake Speaker. In 1839 Mr. John Hutt succeeded Captain Stirling as Governor. For fifty years the history of the colony was uneventful except for the explorations of Major Warburton, Mr. Ernest Giles, and Mr. (afterwards Sir) John Forrest.

A Representative Legislature. — By the Act 13 and 14 Vic. c. 59 (5th August, 1850) sec. 9, it was enacted "that upon the presentation of a petition signed by not less than one-third in number of the house- holders within the colony of AVestern Australia, praying that a Legis- lative Council according to the provisions of this Act be established within such colony, and that provision be made for charging upon the revenue of such colony all such part of the expenses of the civil establishment thereof as may have been previously defrayed by Par- liamentary grants, it shall be lawful f9r the persons authorized^ and empowered to make, ordain, and establish laws or ordinances for the government of the said colony, by any law or ordinance to be made for that purpose, subject to the conditions and restrictions to which laws or ordinances made by such persons are now subject, to establish

COLONIAL GOVERX^FENT IN AUSTRALIA. 69

a Legislative Council within such colony, to consist of such number of members as thej shall think fit, and such number of the members of such Council as is equal to one-third part of the whole number of members of such Council, or, if such number be not exactly divisible by three, one-third of the next greater number which is divisible by three, shall be appointed by Her Majesty, and the remaining members of the Council shall be elected by the inhabitants of the said colony." Under this Act Western Australia, in 1870, was granted a Legislative Council consisting of 26 members, nine of whom were nominated and 17 were elected.

Responsible Goverxmext Sought. — Three years after the grant of this instalment of Representative Institutions a movement was commenced in Western Australia in favour of Responsible Government as it existed in the Eastern colonies. Earl Kimberley, in reply to the first application, said : " Her Majesty's Government would not be disposed to resist any widespread and sustained desire which might prevail in the colony for Responsible Government." In 1874 a draft of a Constitution Bill was sent to the Secretary of State for the Colonies, who, however, decided that the colom^ was not yet ready for the change. On 9th April, 1884, the Governor, Sir Napier Broome, reported that though he saw no valid reason for withholding free institutions from the colony, after its inhabitants should have expressed a general and decided wish to take upon themselves the burden and responsibility of that form of government, he was strongly of opinion that, until such a wish was expressed, which certainly it had not been as yet, it would be a mistake to make such a great and irretrievable change. He also said that Western Australia must be separated into two parts, and that the northern portion, above the 26th degree of lati- tude, should remain for the present a Crown colony. On 6th July, 1887, the Legislative Council of Western Australia (1) affirmed the desirability of the concession of self-government, but (2) protested against the division of the colony. On 12th July, 1887, the Governor reported that having carefully considered the whole matter, he strongly supported both the first and second of the resolutions, and gave his reasons why he had changed his opinion in respect to the suggested division of the colony in his despatch of three years pre- vious, but added that it was only a matter of time when Western Australia would be separated into two or more colonies.

In a despatch, dated December, 1887, the Secretary of State intimated that Her Majesty's Government favoured the view that, in any new constitutional scheme, the colony should be divided at about latitude 26' (or in the neighbourhood of the Murchison River) ; that it should be lawful for the legislature of Western Australia to regu- late, by Act passed in the usual way, the sale, letting, and other dis- posal of the waste lands of the Crown south of that line, and the disposal of proceeds arising therefrom ; and that all the regulations affecting the sale, letting, disposal and occupation of waste lands of the Crown in the territory north of that line should remain under the control of Her Majesty's Government, the proceeds of all land sales being invested at intei-est, to form a fund of which the principal would be reserved for the benefit of anj' colony or colonies, which

70 HISTORICAL INTRODUCTION.

niiglit thereafter be created in such northern territory, except so far as it might from time to time be expended for the special advance- ment of the district in which it was raised.

Peepaeation of a New Constitution. — In 1889, the Legislative Council was dissolved and a general election took place, the principal question being the introduction of Eesponsible Government. The new Council passed a resolution, without dissent, in favour of the proposed change. A new Constitution was then drafted by the Council. It provided for the creation of a bi-cameral legislature, composed of an elective Upper House of lb members, and an elective Lower House of 30 members. To this legislature it was proposed to give powers and functions similar to those vested in the legislatures of the eastern colonies, including the disposition of the waste lands of the Crown. It Avas further provided that, notwithstanding anything in the Constitution, Her Majesty might divide the colony of Western Australia by separating therefrom any portion thereof, and either erect the same or any part thereof into a separate colony or colonies, or subdivide any colony so erected, or re-unite to the colony of Western Australia any part of any colony so created. The sum of £5,000 per year was appropriated for the benefit of the aboriginal natives within the colony, to be expended in providing them with food and clothing and in promoting their education. Pensions were provided for Sir Malcolm Fraser, Colonial Secretary; Mr. Charles N. Warton, Attorney- General; Mr. A. O'Grady Lefroy, Colonial Treasurer; and Mr. John Forrest, Surveyor-General and Commissioner of Crown Lands, upon their retirement from oflBce on political grounds.

The Bill was forwarded to the Secretary of State for the Colonies, who, on 31st August, 1888, returned it with suggested amendments — the principal being that the members of the Council should be nominated, instead of elected. The Legislative Council agreed to accept the proposed amendments, subject to the provision that after the expiration of six years, or as soon as the colony acquired a popula- tion of 60,000, the Upper House should be constituted by election, instead of nomination. The Bill was passed and reserved on 29th April, 1889. This compromise was accepted by the Secretary of State for the Colonies, Lord Knutsford, and on 11th July, 1889, he moved the second reading of a Bill to enable Her Majesty to assent to a Bill for conferring a Constitution on Western Australia. One of the grounds suggested, as justifying the change, was that it was desirable that all the colonies on the Australian continent should, as soon as practicable, be placed on the same footing. Until there was uniformit}' of govern- ment, there could be little chance of any system of federation, to which he looked forward as a change which would largely tend to increase the wealth and strength of the colonies. The Bill Avas passed by the House of Lords, but it encountered strong opposition in the House of Commons, where the principal objection raised was the in- advisability of handing over such a vast area of country, viz., 978,000 square miles, to a Government responsible to only a small population, not exceeding 40,000 inhabitants. On the 26th August the Bill was withdrawn.

Responsible Government. — In the next session of Parliament,

COLONIAL GOVERNMENT IN AUSTRALIA. 71

however, the Bill received the concurrence of both Houses. It became law on the 25th July, 1890; the new Constitution was pro- claimed on 21st October, 1890. It is embodied in the Imperial Act, o3 and 54 Vic. c. 26. The first Kesponsible Ministry was composed of Sir John Forrest, Colonial Treasurer and Premier ; Mr. Geo. Shen- ton. Colonial Secretary (succeeded by Mr. Stephen Hy. Parker) ; Mr. Edward Home Wittenoom, Minister of Mines; Mr. Stephen Burt, Q.C., Attorney-General (succeeded by Mr. R. VT. Pennefather) ; Mr. William Edward Marmion, Commissioner of Crown Lands (succeeded by Mr. Alexander Robert Richardson) ; Mr. Harry Whittall Venn, Commissioner of Railways and Public Works.

Reforms. — On 18th July, 1893, the population of the colony being then beyond 60,000, the le^slature of Western Australia passed an Act, 57 Vic. Xo. 14, to amend the Constitution, abolishing the nominee Council and substituting one elected by the qualified inhabi- tants of the colony.

In the session of 1899 a "Constitution Acts Amendment Act" was passed by both Houses of the West Australian Parliament, and reserved on 16th December for the Royal assent. This Act, when assented to, will introduce several important changes. Besides con- solidating previous Constitution Amendment Acts, it increases the numbers of both Houses, extends the franchise for both Houses to women, reduces the period of residence in the colony necessary in order to qualify as an elector, and reduces the duration of the Assembly to three years from the date of its first meeting. The Legislative Council is to consist of 30 members, returned by 10 elec- toral provinces. Under this Act the qualifications of Councillors are : — Male ; 30 years ; a British subject, either natural-born and resident in the colony two years, or naturalized and resident for five years. Every adult person, being a natural-bom or naturalized British sub- ject, resident six months in the colony, is entitled to be registered as a Council elector in every Province in which he or she has a freehold qualification of £100 capital value, a household or leasehold qualifica- tion of £25 a year, or a Crown lease or license of £10 a year. For membership of the Assembly, of which there are to be 50 members, the qualifications are : male ; 21 years ; a British subject, either natural-born and resident in the colony for one year, or naturalized for five years and resident two years. Every adult person, being a natui*al-bom or naturalized British subject, is entitled to be regis- tered as a voter if he or she has resided in the colony for six months, and is entitled to vote after being registered for six months; and is also entitled to a property vote in every district in which he or she has a freehold qualification of £50 capital value, a leasehold or household qualification of £] 0 a year, or a Crown lease or license of £5 a year.

72 HISTORICAL INTRODUCTION.

(6) QUEENSLAND.

Foundation. — In 1823 Lieutenant Oxley^ the Surveyor-General of New South Wales, was directed by Sir Thomas Brisbane, Goveruor of New South Wales, to inspect Port Bowen, Port Curtis, and More- ton Bay, in order to ascertain which, if any of them, was suitable for the establishment of a new penal settlement. In the course of his explorations he discovered a large river flowing into Moreton Bay, which he named the Brisbane, and explored for the distance of fifty miles. He was so satisfied with the country that he reported in favour of the establishment of a penal depot on the banks of the Brisbane. In September, 1824, in company with Lieutenant Miller, who was in charge of a detachment of the 40th regiment, Oxley returned to the Brisbane River and formed the nucleus of a prison settlement, com- prising thirty convicts, near the present site of the city of Brisbane. In the following year the Brisbane River was further examined by Major Lockyer of the 57th regiment; Captain Miller was the first Commandant. In 1839 it was determined to abandon Moreton Bay as a penal settlement. Sir George Gipps laid out the plan of Brisbane in 1841. On the 4th May, 1842, free settlement commenced; in the same year Captain J. C. Wickham was appointed Police Magistrate and afterwards Government Resident.

Provision for Separation. — The Act 5 and 6 Vic. c. 76 (30th July, 1842) empowered Her Majesty, by letters patent, to separate from New South Wales any part of the territory of that colony lying^ to the northward of 26° south latitude, and to erect such territory into a separate colony or colonies. It was subsequently found that the 26th parallel was not far enough south to meet the requirements of a new^ colony, and by the Act 13 and 14 Vic. c. 59 s. 34 it was declared that upon the petition of the inhabitant householders of that part of the territory of New South Wales lying to the northward of the 30^ of south latitude. Her Majesty might detach such territory from the colony of New South Wales and erect it into a separate colony or colonies. By the Constitution Statute and Act of New South Wales, 18 and 19 Vic. c. 54 (16th Jul}', 1855), the power previously' granted to alter the northern boundary of New South Wales was distinctly preserved, and Her Majesty was authorized, by letters patent, to ei-ect into a se

Related documents

• Australasia Triumphant!: With the Australians and New Zealanders in the Great War on Land and Sea#61437
• The British Year Book Of International Law 1946#22022
• Aimless Progress and the Myth of the Constitution-Promotion Distinction#92392
• 48 U.S.C. § 1974 — Connecting Oceania’s Nations With Vanguard Exercises and National Empowerment#598193
• Democracy and Constitutional Change#494298