The colonial press generally approved the ministerial bill, not as a measure approaching perfection, but for some favorite object it was calculated to hasten. It was hailed at Port Phillip because it secured separation from Sydney; at South Australia, as certain to terminate the ecclesiastical endowments; and in Van Diemen's Land it was welcomed, with all its faults, as the engine sure to destroy transportation. Thus the Colonial Reform Society, which attempted to defeat the government measure, found little sympathy beyond New South Wales, where the change gave nothing. The ministers interpreted the satisfaction of the colonies as a testimony to their skill, not detestation of their government. The real cause of colonial delight was the severance of their chains, and the certainty that when broken all the power of Europe could never renew them.
The bill suffered some mutilations in its passage to the throne. The federal clauses were expunged. The local governors were opposed to the establishment of an assembly of delegates, which would have overruled their individual policy. They were fearful of compromising their revenues by permitting to New South Wales the preponderance of members. These objections, not indeed without weight, and, still more, the jealousy of the conservatives of an organisation which seemed but a prelude to independence, despoiled the measure of a provision which, however modified, must be ultimately restored. A reduction of the franchise of the bill from £20 to £10, nearly equal to household suffrage, was, however, the most considerable change. It was suggested by Mr. R. Lowe, to bear down an opulent emancipist interest in New South Wales. It was expected to give irresistible power to that class in Van Diemen's Land. The bill was carried through the lords by a trifling majority in a thin house. The fate of a young empire but slightly moved the British peerage. It received the royal assent, August 5th, 1850.
When the bill arrived the joy of Port Phillip was unbounded. Several days were devoted to processions and feasting. Numberless devices were exhibited, displaying the political bias of the people. Many thousand pounds were spent in the festivities. A similar though less magnificent display was made in Van Diemen's Land. All ranks were inclined to forget their differences, and public dinners, at which many hundreds were guests, celebrated the constitutional victory.
Lord John Russell, on the second reading of the bill, explained his opinions, which, whether or not consistent with the ministerial measure, were worthy his station and political renown. "I anticipate with others," he said, "that some of our colonies may so grow in wealth and population that they may feel themselves strong enough to maintain their own independence in amity and alliance with Great Britain. I do not think that that time is yet approaching. But let us make them, as fast as possible, fit to govern themselves. Let us give them, as far as we can, the capacity of ruling their own affairs. Let them increase in wealth and population; and, whatever may happen, we of this great empire will have the consolation of saying that we have increased the happiness of the world." Such sentiments tend to extinguish the desire to quit a political connection rendered honorable by terms so nobly expressed by the first minister of the crown, and which, if fairly carried out, will make the colonies cling with fondness to a nation so magnanimous as to greet them with applause.
In 1846-7 important additions were made to the educational means of the colony. An episcopal institution, called Christ's College, was formed at Bishopsbourne. Scholarships were founded by the medical, military, and clerical professions, and divinity fellowships endowed (1846). Lord Stanley recommended the establishment of a proprietary high school, open on equal terms to all denominations, and promised the patronage of the crown. The site reserved for this purpose at Hobart Town was granted by Sir W. Denison to the episcopalians, for the Hutchins' school. This alienation was deemed unjust. Instead, however, of wasting time in unavailing complaints, the friends of education were convened by Mr. H. Hopkins, an opulent merchant, when a prospectus was submitted by the Rev. Dr. Lillie and J. West. A thousand pounds were subscribed in the room, and in five weeks £5000 (1847). The first conspicuous object seen by the stranger on entering the river is the High School of Hobarton,—an edifice erected amidst enchanting scenery, on a site granted by the crown, and possessing architectural attractions which have yet to be equalled in this hemisphere. The institution is managed by a council of nine, chosen by the shareholders. The Rector, nominated by the London University, was the Rev. J. B. Froude, author of the "Nemesis of Faith,"—a publication which led to his instant resignation. James Eccleston, Esq., appointed in his stead, survived the opening of the school only one month. A thousand pounds were subscribed for his widow.
Thus the activity of private zeal effected the objects contemplated by legislative interference. The growth of population will give ample scope for these various institutions, and extinguish all but a wholesome rivalry.
FOOTNOTES:
[248] The council derived their powers from the Act 9 of George IV., c. 83. They were permitted to enact ordinances "for the good government of the colony," but they were forbidden to impose taxes, except for local purposes; and they were ordered to state "distinctly and particularly in the body" of every law the purposes to which the tax should be applied; and thus to prevent the evasion of the prohibitory clause intended to protect the subject. It was not worth while to enquire whether the view of the judges of the legality of the act in the case of Symons v. Morgan was in harmony with the parliamentary act, because the question merged in one of much greater importance—Whether they could take that act into consideration at all? It was of far more consequence to know whether the colony had a remedy against the usurpation of the legislative council, than to decide whether Messrs. Horne and Fleming were better lawyers than Sir John Pedder and Mr. Justice Montagu. "The powers of a subordinate legislature," says a distinguished writer, "are expressly or tacitly delegated by the supreme government. In order, therefore, to determine whether an act of the legislature has a binding force, it is necessary to look at the extent of the delegation. If the act be not within the scope of the delegation, it is without binding force, and can be annulled before a competent tribunal" (Lewis on Dependencies). Sir Wm. Denison stated that the silence of the Judges for fourteen days after the act was passed,—whatever might have been the cause of that silence—ignorance, indolence, sickness, or corruption,—rendered the most unlawful stretch of power on the part of the council, including the total subversion of all the limitary clauses, binding upon the colony, and if sanctioned by the Queen, through the same ministerial inadvertence or corruption, binding for ever. Judging of the intentions of parliament by the general character of colonial legislation and by the cautious wording of this act, it could scarcely be imagined that they suspended the public safety on such a thread. That Englishmen should be deprived of their rights, without the possibility of appeal, by the inadvertence of a judge—not sitting in a court of justice, but in his own chamber—would be to legislate by accident. Sir Wm. Denison relied on the despatch of Sir George Murray (1828), which accompanied the Act 9 Geo. IV., known as the "Huskisson Act." The former practice was to require the governor to submit to the judge the draft of a bill before it was laid upon the table of the council chamber, no principle of colonial law being more "firmly established than that a colonial legislature cannot enact statutes repugnant to the law of England." The judge (he said) "might have found himself often required in open court to deny the validity of a colonial ordinance, on the ground of repugnancy." By the Act in question "provision was made for fully learning the views of the judges upon the law, and for preventing their refusing to execute any law that may be passed after a full consideration of their objections." Thus it was intended to "combine, as far as possible, the advantage of a strict observance of a general rule, and a harmony between the judges and the legislature." It was therefore clear that the power given to the judges to stop the enforcement of any illegal ordinance continued until their objections—whenever and wherever they might arise—had been "fully considered."—Hobart Town Courier.
[249] Parl. papers, July. 1848.
[250] Despatch, August, 1838.