CHAP. XVI POWERS of the lieutenNANT-GOVERNOR 157

the oaths of office, and proclaimed himself Governor-General on the 12th June 1851.

Passing now to Victoria itself, we find Mr. La Trobe, on the 15th July 1851, announcing his appointment as Lieutenant-Governor, under the sign-manual, which, in effect, authorised him to exercise the powers contained in the Governor's Commission during the Governor's absence. Mr. La Trobe's proclamation also announced that Her Majesty had appointed the Principal Law Officer, the Treasurer, and the Collector of Customs to be members of the Executive Council of Victoria.1 As the Lieutenant-Governor was at this time the real head of the Executive in the colony, it may be worth while to see what were his actual directions and powers under the Commission, which, it is believed, has never been printed.2

By the terms of this instrument, the Governor is directed to take care that the legislation of the colony conforms to the provisions on the subject in the Constitution Statute, and to appoint an Executive Council of persons nominated by the Crown with the advice of the Privy Council, or provisionally, by himself, which Executive Council is in no case to consist of more than four members. He is empowered to divide the colony into "Districts, Counties, Hundreds, Towns, Townships, and Parishes," to make grants of Crown land with the advice of his Executive Council, and, subject to the provisions of the various statutes and his Instructions on the subject, to appoint judges and judicial officers, to remit fines and penalties up to the amount of £503 in each case, to pardon or suspend or mitigate the punishment of offenders, and to suspend from office, in accordance with the terms of his Instructions, any officials he may deem it necessary to remove, until the Crown's pleasure be known. In case of the death or absence of the Governor, all the powers vested in him may be exercised by any LieutenantGovernor appointed under the sign-manual, or, in the event of there being no such person capable of acting, by the senior member for the time being of the Executive Council.

1 Gov. Gazette, 1851, 23d July. (Apparently there had been a misprint in the earlier issues.)

2 The originals of these documents are in the Treasury Offices at Melbourne. 8 This limit was abolished in the governorship of Sir Henry Barkly (LettersPatent of 2d December 1858, in Treasury offices at Melbourne).

But these formal powers were considerably qualified by the Royal Instructions which accompanied them, and which really formed the practical guide of the Governor's conduct. By these, the Governor is directed to observe certain rules for the prevention of ambiguities in legislation, and to reserve for the royal assent all measures having the following objects :

1. Infringement of the royal prerogative or the freedom of worship. 2. Pledge of public credit for negotiable instruments, or introduction of paper or token currency.

3. Raising of money by lotteries.

4. Facilitating divorce.

5. Making grant to the Governor, or conferring a private benefit on any person without reserving the rights of others.

6. Interfering with the interests of British subjects not resident in the colony.

He is also directed as to his appointment of an Executive Council, he must (unless specially prevented) preside at all its meetings, and see that accurate records of its proceedings are kept and transmitted to England. If he overrules the opinion of the majority upon any question, he must allow them to enter their reasons at length in the Minute-Book. He must properly carry out, in his alienation of Crown lands, the rules laid down by the Crown Lands Act. In making appointments to the public service, he must, in the first instance, only act temporarily, and await the confirmation of the Home government. When a death sentence is pronounced, he must call a meeting of the Executive Council, and summon the judge who tried the case; but the final responsibility for the confirmation or respite of the sentence must rest with him. Finally, the Governor is to assist in the organisation of the diocese of Melbourne, recently constituted, and to protect and educate the aborigines by all means in his power.1

Mr. La Trobe's own Commission (of the same date with that of Sir Charles Fitz Roy) simply appoints him to the office of Lieutenant-Governor of Victoria, with all the "Rights, Privileges, Profits, Perquisites, and advantages to the same belonging," to hold during the pleasure of the Crown; and empowers him, in case of the absence or death of the Governor, to exercise all the powers contained in the latter's Commission, according to present and further Instructions.2

1 Original Instructions in Treasury offices, Melbourne.

2 The original of this commission is also in the Treasury offices at Melbourne.

CHAP. XVI

CRITICISM OF THE ARRANGEMENTS

159

To persons unfamiliar with the mysteries of Downing Street, these arrangements may seem needlessly complex.1 It may indeed well be doubted whether it was wise to attempt to create a general Executive for Australia, in face of the fact that the imperial parliament had definitely declined to create a general legislature, or even to provide for its creation. Suppose that in any difference of opinion between Sir Charles Fitz Roy and Mr. La Trobe, with regard to Vietorian affairs, the Legislative Council of Victoria had taken the side of the Lieutenant-Governor against his chief. Both parties would have been placed in an awkward position. But if the legislature had appealed to Sir Charles Fitz Roy against the Lieutenant-Governor, the position of the latter might have been intolerable. It must be remembered that Sir Charles Fitz Roy was not only GovernorGeneral of Australia, but Governor of Victoria, as well as of New South Wales, Van Diemen's Land, and South Australia. Only towards Western Australia did he stand in the position of a mere overlord, and the terms of his Instructions were such that he must have felt that his position with regard to Western Australia was intended to be merely nominal. It was doubtless the fear that the same result would ensue in the other colonies which led the Home government to make the complicated arrangements described in this chapter. But it seems more than likely that these arrangements, if acted upon, would have led to dire confusion, and, as a matter of fact, they never were acted on, at least so far as Victoria was concerned. If it was merely desired to pay a well-merited compliment to a valuable public servant, whose sphere of action was being apparently reduced just as he was deserving well of his country, the object might surely have been attained by the simple grant of the titular distinction of Governor-General to Sir Charles Fitz Roy.

However, the arrangement was continued during Sir Charles Fitz Roy's tenure of office, Sir Charles Hotham's commission, dated the 3d December 1853,2 being in the same form as that of Mr. La Trobe. But on Sir Charles Fitz Roy's departure,

1 It is possible that they were suggested by Indian precedents. (Cf. 33 Geo. III. c. 52, §§ 40-46, and 3 & 4 Will. IV. c. 85, §§ 56-59.) And again, the Australian precedent may have reacted on subsequent Indian practice.

in January 1855, a new Commission as Governor of Victoria,1 substantially in the same form as that of Sir Charles Fitz Roy, was issued to Sir Charles Hotham; and though the title of Governor-General was continued till the arrival of Sir John Young in Sydney in the year 1861, we hear very little more about it. It seems to have been of no practical value.

With these preparations, the constitution of Victoria was got to work. But not without a severe trial of stability. For the discovery of gold in New South Wales was speedily followed by its discovery in Victoria, and so great was the shock that the wheels of government were well-nigh stopped. On the 16th July 1851, less than three weeks after separation, the Lieutenant-Governor was obliged to issue a notice to the effect that any public servant who resigned his post in the existing emergency would be noted as ineligible to serve again, and would certainly not be re-appointed during His Excellency's administration.3 And this ominous notice was followed at the expiration of a month by a proclamation declaring it to be illegal to take gold from any lands in the colony, and to dig or search for gold in the unalienated lands of the Crown. On the 18th August 1851 appeared Regulations for Gold Licences. They are practically identical with those issued by Sir Charles Fitz Roy for New South Wales, and fix the licence fee at thirty shillings a month, payable in advance, the licence to be obtainable from the Commissioner on the spot, who is to make rules adjusting the boundaries of the different claims, to prevent confusion. No one is to be eligible for a licence or renewal unless he produces a certificate of discharge from his last place, or proves to the satisfaction of the commissioner that he has not improperly absented himself from hired service. No licences to dig in private lands are for the present to be granted to any person but the owners or their nominees. The Regulations are followed by the well-known form of licence.5

In spite of the severe shock produced by these events, and

1 Dated 2d Feb. 1855. Original in Treasury offices at Melbourne. The maximum membership of the Executive Council is by this Commission extended to six. 2 Cf. Gov. Gazette (N. S. W.), 1861, 21st Jan., 16th May.

3 Gov. Gazette, 23d July 1851.

4 15th Aug. 1851, Gov. Gazette. (MS. copy in Public Library, Melbourne.) 5 Copy of Regulations in Gov. Gazette, 20th Aug. 1851. (Specimens of licences actually issued can be seen in the Public Library, Melbourne.)

CHAP. XVI FIRST VICTORIAN LEGISLATIVE COUNCIL 161

the evil passions which they aroused, the new Constitution was started. On the 4th October the returns of the elections were published.1 On the 17th the first meeting of the Council was fixed by proclamation for the 11th November, at St. Patrick's Hall, Bourke Street.2 On the 31st the appointment of the non-elective members was proclaimed, and on the 11th November the Council duly met.1

There were names well known in Australia on the rolls of the first Legislative Council of Victoria. Mr. J. P. Fawkner, one of the pioneers of the colony, sat for the counties of Talbot, Dalhousie, and Anglesey; Mr. J. F. Palmer (afterwards Speaker) for Normanby, Dundas, and Follett; Mr. William Westgarth and Mr. John O'Shanassy for Melbourne City. The nominee members included Mr. (afterwards Sir William) Stawell, the future Chief-Justice; Captain Lonsdale, the first magistrate of Port Phillip; Mr. (afterwards Sir Redmond) Barry; Mr. Ebden, whose resignation of his seat in the Sydney Council had led to the election of Sir Thomas Mitchell; and Mr. William Clark Haines, the future Colonial Secretary and first Responsible Premier of Victoria. It will be noticed that of the nominee members only two were members of the Executive Council.

Immediately upon the assembling of the legislature the members proceeded to elect a Speaker. The choice fell upon Mr. J. F. Palmer," who, on the following day (12th November 1851), was allowed by the Lieutenant-Governor. On the 13th followed the latter's opening speech," which contained more than one interesting announcement with regard to the future relations between the legislature and the executive. The Lieutenant-Governor stated that he should submit the details of the Government expenditure, even in the unalterable items of the schedule, for the Council's examination, that he should propose a revised tariff after consultation with the other colonies, that he should propose a new system of education and a new judicial system. He asked for an indemnity for the acts of the executive in dealing with the emergencies con

1 Gov. Gazette, 8th Oct. 1851. 2 Ibid. 22d Oct.

3 Ibid. 5th Nov.

4 V. and P. 1851, p. 1 (this volume is not in the Public Library). 5 Ibid.

6 Ibid. p. 3.

7 lbid. p. 10.

8 This plan was never carried out. The Customs Acts of New South Wales and Victoria for the following year are substantially different (cf. 16 Vic. No. [Victoria], and 16 Vic. No. 7 [N. S. W.])

M