# The Present State and Prospects of the Port Phillip District of New South Wales/Chapter 6

CHAPTER VI.
By the act of parliament, 5 and 6 Victoria, cap. 76, a new constitution was given to the colony of New South Wales. By this act, the legislative power is vested in one chamber, called the Legislative Council, controlled, however, by the veto of the governor in the first instance, and by that of the queen in the second. Any bill which passes the council and receives the governor's assent, becomes law until disallowed by the queen, and notice of such disallowance being published in the colony; and any bill which passes the council, but from which the governor withholds his assent, does not become law unless the queen subsequently allows it, and until notice of such allowance as before.
The governor is assisted by an executive council, consisting, I believe, of the chief justice, the bishop, the commander of the forces, the colonial secretary, the colonial treasurer, and the attorney-general.
The Legislative Council consists of thirty-six members, twelve of whom are either ex officio members, as holding certain offices under the crown, or are ​nominated by the governor. The remaining twenty-four are elected by the people; of these, one is returned for the town of Melbourne, and five for the district of Port Phillip generally. The council, if not previously dissolved, lasts for six years. The qualification for members of council is £2,000 of freehold estate in land, or £100 a year issuing out of it. That of electors is £200 of freehold estate in land, or the occupation of a house worth £20 a year.
The infusion of the principle of popular election into the constitution of the Legislative Council has been a boon conferred by the present government in a spirit of enlightened legislation, and, although the qualification both of members and electors is unsuited to the circumstances of the country, it has been received by the colonists generally in a spirit of becoming thankfulness; and I have no doubt that the beneficial results of this measure will amply repay those who have had the merit of framing it. It is, however, much to be regretted, that this boon could not have been granted without affording a further proof either of the ignorance of government with regard to the true state of the colony, or of its utter disregard of the pastoral interest which is its mainstay. It was scarcely to have been expected, that in framing a constitution for a new legislative assembly, this interest should have been overlooked, and the property, whose annual returns are exhibited in the exports of the country, left entirely unrepresented. Yet such is the case. If, for instance, one examines the table of exports from Port Phillip, given in a former chapter, it will be found, that out of £232,000, to ​which they amount, four and a-half tons of oil valued at £104, are the only portion not raised by the unrepresented part of the community. In legislating for new conditions of society, men should resort to principles, and not be guided entirely by precedent. Qui hœret in literâ, hœret in cortice. The freehold was adopted by our ancestors as the test of qualification, not because there was any greater virtue in a lease for life, than for a term of ninety-nine years, but because, as the name implies, it was the peculiar tenure of the freeman, and the test of his being such, which in those primitive times was considered a sufficient qualification for the exercise of the elective franchise. In modern times, the same object of limiting the elective franchise to those whose position in life gives a certain degree of assurance that they would properly exercise this important privilege, has been carried out in the British isles by enlarging the qualification, but still resting it, for the most part, on the basis of landed property, or the occupation of a house of a certain value, which there forms a very fair test. In the case, however, of the three universities, as also in that of freemen of cities, this principle is departed from; and in these, the qualification to exercise this right is ascertained by a test totally irrespective of property.
If, then, respectability tested by the possession of a .fixed property be taken as the basis of qualification, or if, as some perhaps may propose, and as is the case in France, the direct contributions of a certain amount towards the public burthens should be employed as a test, on either or both these grounds the stockholders ​are entitled to be represented, while under the present law their tenure as squatters gives them no claim to be so. The government first, in their character of monopolists of land, force the most wealthy and respectable colonists to put up with a servile tenure, and then, in their character of lawgivers, recognize their political rights no more than if they were really serfs. With reference to the respectability of this class, I shall quote the words of a petition to the House of Commons on the subject of the franchise, which was agreed to at a highly influential meeting at Melbourne, but which has not yet been forwarded, in consequence, I believe, of some of the parchment rolls containing signatures having been lost. After stating the claims of squatting stockholders to the exercise of this right on the ground of property, and of direct contribution to the public revenue, it thus proceeds:—
"That there is nothing in the position or circumstances of stockholders, which can warrant this exclusion, their body being chiefly composed of men of education, and numbering amongst them several members of the learned profession, and many retired officers of the army and navy, persons in influence and consideration second to none in the district. As a proof of which assertion may be cited the fact, that from amongst them have been selected the greater number of officers who fill, the most confidential situations under the crown, and nearly the whole of the territorial magistracy."
It is indeed absurd, that a man of education, the ​owner of perhaps 15,000 or 20,000 sheep, and who is an extensive employer of labour, should not be entitled to vote at the election of a member, far less to sit in the Legislative Council, while, if his bullock-driver leave his service, and sets up as a water-carrier at Melbourne, occupying a house worth £20 a year, he becomes his superior in constitutional privileges. The objection to making personal chattels the basis of qualification, owing to their perishable nature, and the facility of the transfer of property in them, does not apply to stock in a country where the main wealth of the inhabitants consists in flocks and herds and in the profits derived from their produce; for there such property possesses a more permanent character than that attributed to personal chattels by the policy of the English law. So long as a man retains his license from the crown, he must retain his stock, in order to occupy his run; when through distress, or from any other cause, he parts with his stock, he also gives up his license, and embraces a totally new mode of life. The thing is as much or more a matter of notoriety than a transfer of landed property; and this it is which, in my mind, allows a broad hue to be drawn between the possession of personal chattels in England and property in stock in Australia, accompanied by the possession of a depasturing license, and the payment of an annual assessment for each head.
The only other shadow of an argument against giving the elective franchise to squatters is, that they are virtually represented under the present system. This, however, is a consideration which cannot be supposed ​to have influenced the framers of our new constitution, as it was one which was urged against the English reform bill, but was not considered of much weight, and justly so; for if men have rights, they are entitled to have them assured to them, and not to have them left to accident.
But, as far as the Port Phillip district is at present concerned, it makes but little difference what may be the qualification of members of the legislative council, or of the electors who return them; for as long as Port Phillip is joined to the Sydney district, and the council holds its sessions at Sydney, it is impossible that the former can be adequately represented. The number of men is very small indeed who in a new country can afford to leave their homes and the superintendence of their business for two or three months of the year, even if they were willing to incur the expense of living at Sydney, and to take a journey of six hundred miles in a wretched conveyance, over a bush road, or a voyage of eight hundred miles in a very stormy part of the southern ocean. Even in England, amongst the number of men of independent property, who can leave home without inconvenience or loss, and with all the facilities for travelling which they possess, how few men would be willing to go into parliament if its sessions were held at Gibraltar, the voyage to which would be more easily performed than that from Melbourne to Sydney? The consequence of this has been, that out of six candidates at the only election for the district, four were residents at Sydney, none of whom I believe had ever been at Port Phillip until immediately preceding the election; and of the other two one I hear ​has already resigned, or is about to do so; and such has been found the inconvenience, that I do not think in future that any resident at Port Phillip will be found willing to undertake the office.
The creation of the new legislative council has had this good effect, that it has made the entire population of the Port Phillip district unanimous in their wish for their separation from Sydney. And when, in addition to what I have stated above, the state of the accounts between the two districts is taken into consideration, this will not be matter of surprise.
By returns laid by the government before the legislative council it appears that the ordinary revenue derived from the district of Port Phillip from the period of its first settlement until the close of the year 1842, amounted to £222,984 0 7, and that the whole expenditure actually incurred for its government during the same period amounted to £254,965 0 6½, thus making it appear that there was a balance against the ordinary revenue of the district of £31,980 19 11½; but, on examining the details of this return, we find that a sum of £28,863 14 6½ for the surveyor-general's department is charged against the ordinary revenue, when clearly it ought to have been charged against the extraordinary revenue from crown lands, as it is an expenditure incurred solely on their account. We also find a further sum of £29,464 4 5½ charged for the expenses of the establishment for the aborigines; and as by law, as well as in justice, this is a charge on the land fund it has no business to appear in the charge against the ordinary revenue. Making these deductions, the account would stand thus:
It will be thus seen that £196,637 1 6½ is all of the expenditure that is fairly chargeable on the ordinary revenue; and when we consider that of this sum £62,103 3 has been expended in public works, it will appear that there has been a surplus of £88,450 11 3½ after defraying the necessary current expenses of the government during that time.
It appears on the same authority that the revenue arising from the sale of crown lands in the Port Phillip district, commonly called the extraordinary revenue, amounted during the same period to £393,911 11 1, and that the expenses incurred for emigration to Port Phillip, and for the passages of clergymen and black protectors, amounted to £204,446 5 0½, leaving a balance in favour of the Port Phillip revenue of 16 189,465 6 0½; but charging against this sum the expenses of the departments of the surveyor-general, and of the aborigines, the account would stand thus:—
To the return of the revenue from crown lands there is a note appended by the auditor-general to this effect:—"It has been estimated that the sums invested in the purchase of land at Port Phillip were derived in nearly equal proportions from the united kingdom. Van Dieman's Land and Sydney." Now I am not aware with what object this piece of information was given. It surely could not be intended to insinuate that the Sydney people, after having purchased one-third of the land, had a right to have the purchase-money back again. If so, to carry out the principle the two remaining thirds ought to be sent, one to the united kingdom, and the other to Van Dieman's Land.
A perusal of the following statements will show that should the universal wish of the inhabitants of Port Phillip for a separation from Sydney be acceded to, there are ample funds for carrying on the separate government, and not the slightest prospect of her costing the mother country one farthing.
From papers laid on the table of the legislative council by the colonial secretary, it appears that the ordinary ​revenue of the Port Phillip district for 1844 is estimated by Mr. Latrobe at £83,390, which estimate is adopted by the governor; while the probable expenses of the civil, judicial, and other establishments were estimated as follows:
​From these documents it appears that the estimated ordinary revenue of Port Phillip for the year 1844 amounts to £83,390, while the sums voted for the public service in that district for the same year amount only to £44,146 8 10, leaving a balance of about £39,000, which goes into the Sydney treasury, and for which the people of Port Phillip receive no equivalent, unless their share of the expenses of the governor and council be considered as such. Allowing for this £3,000 a year, there is still a balance of 36,000 lost to them. If we subtract from the estimates £4,000, the sum voted for public buildings, the expenditure on the current purposes of government would be about £40,000.
Under these circumstances there can be, as I said before, no reasonable apprehension of the colony of Port Phillip not being able to support the expenses of its government in case of its separation from Sydney; for, allowing £10,000 a year as the increased expenditure consequent upon such a step, there would still remain a sum of about £33,000 per annum applicable to the purposes of public works, and to meet contingencies. When this statement of accounts is considered, and when it is further added that the establishments of the country are, on the plea of poverty, kept on a footing inadequate to its wants—thus, for instance, that ​petty sessions are not established, for fear of incurring the expense of the salaries of a constable and a clerk of the bench, and that by this means hundreds of miles of country are left without any tribunals to resort to for the adjustment of their disputes—that the police magistrates are withdrawn on the same ground—that the police force is ridiculously disproportioned to the wants of the district—that public works, having for their object general utility and convenience, are not undertaken—and above all, that a new mode of taxation has been adopted by the establishment of district councils, and that we shall have to pay separately for police and public works, although the fund raised from the district by general taxation has not been exhausted—when all these circumstances are taken into consideration, it is not to be wondered at that a strong feeling ​on the subject should be entertained by all classes at Port Phillip.
I should, perhaps, apologize to the reader for occupying his time with matters not of general interest; but I look upon the subject as one of such vital importance to the district of Port Phillip, that I should consider myself guilty of a dereliction of duty did I omit this opportunity of bringing it forward.
To return to the legislative council, I have no doubt, as I said before, that, although defective in its constitution, this new assembly will be of great service to the colony generally. Assembled, however, at a period of great commercial difficulty and individual distress, in which many of its members were involved, and by which all were affected, it was scarcely to be expected that it should have taken a perfectly calm and dispassionate view of the position of the colony, or have shown that abstinence in meddling with credit which all experience has proved to be the wisest course for a legislature to pursue. Accordingly, a desire to tamper with this delicate subject, and an anxiety for a system of "Political Tinkering," has been exhibited by some members, which if unchecked might have worked serious mischief. Two different bills were introduced, each embodying a scheme of pledging public credit in aid of private ​security. One of these was carried through the house, but the governor refused his assent to it, and it will not become law unless allowed by the queen, which it is to be hoped it will not be. Nor has the council shown that caution in overruling the principles of the English common law which would have been becoming, and which might have saved them from passing an act which will, I fear, turn out a very inconvenient piece of legislation. I allude to what is termed the preferable lien bill.
But the only occurrence, in my opinion, really discreditable to the council was the introduction of a bill to regulate the interest of money, one of the provisions of which was to prevent above a certain rate of interest being paid or taken on foot of mortgages, made even prior to the passing of the act, and notwithstanding that a higher rate of interest might have been agreed on. It was, in fact, an act to legalize the evasion of engagements deliberately entered into, and was one of which no honourable man could have taken advantage. It was not indeed carried, but the fact of its having received ​any support, and of its not having been scouted out of the house with all the reprobation of which its forms admitted, does, in my mind, injuriously affect the character of the council. The preferable lien act is an act to give the owner of sheep, cattle, or horses, power to mortgage the wool of his sheep; or the sheep, cattle, or horses themselves, without parting with the possession (in derogation of the common law principle enforced by the statutes against fraudulent conveyances). The result of which will be to clog the transfer of such property with legal difficulties, and to make it nearly as hazardous to buy sheep, cattle, or horses, without consulting a lawyer as to title, and searching against incumbrances, as it would be to purchase a landed estate without these preliminaries, and with this additional difficulty, that there are no means of tracing the title or knowing against whom to direct searches. When you have bought a horse, and are congratulating yourself on having steered clear of splints and spavins, ringbones curbs, and corns, and all the ills that horseflesh seems peculiarly the heir to, you may discover, that when you thought you were buying a horse, you were only purchasing an equity of redemption, which your lawyer will inform you is a horse of another colour.
​ Notwithstanding these errors (as they appear to me), which are perhaps to be attributed to the influence of circumstances and pressure of the times, I think that the colony have reason to be satisfied with the result of the first session of the Legislative Council. It has shown a laudable zeal in grappling with all the difficult questions of colonial politics, and the mass of information collected upon these subjects, and the able reports furnished by the committees which have been engaged in these investigations, are monuments highly creditable to the industry and talent of the gentlemen who composed them. It is indeed of the greatest importance that there should be some mode in which the opinions of the most respectable and most experienced of the colonists should be made known, and that there should be some source from which persons in power in England may derive information above all suspicion; ​and this opportunity is afforded by the evidence collected by the committees of the legislative assembly. The deportment of the members in debate (as far, at least, as can be collected from the public prints) has been marked by a courtesy of demeanour towards each other, and an absence of anything like an unfair imputation of motives, or unpleasant personal allusion, highly creditable to their feelings as gentlemen. When too they have differed from the governor, the expression of opinions used by the house has always been in most respectful terms, showing a proper sense of what was due to others as well as to itself. I repeat, therefore, that I think the colonists generally have reason to be satisfied with the result of this first attempt at self-government, and to be grateful to the home government for having conferred on them this unsolicited boon. And while I regret that the usury bill should have received any support in the council, which I consider a blot on its character, and while I feel unjustly treated, as belonging to a body without reason excluded from all participation in the elective franchise, I still, as a colonist, join cordially in both these sentiments.
The same act of parliament which established the Legislative Council, established also through New South Wales rural corporations, called district councils, which have power to tax property within their districts for the purpose of making roads, building bridges, paying one-half of the expenses of the police force and other local objects. The Legislative Council, and in its default the governor, is to declare what property is to be liable to taxation. These councils are elective, and the ​qualification for members and electors is at present the same as that of those to the Legislative Council. The squatters being excluded from these councils, petitioned the governor and council that their property in stock might not be made subject to taxation by, and be placed at the mercy of a body over whom they have no control; and this request being considered reasonable, landed property alone has been declared subject to taxation for these purposes, so that as long as this remains the case, the squatters have on this ground no cause for complaint. As in Port Phillip the proportion of land yielding a profitable return is very small, no tax of any amount can be raised without bearing very hard on the landed interest. The consequence is, that the district councils will not vote any salaries to the officers whom they have been obliged to elect, and there being likewise no funds to employ persons to make any assessment, or even to hire a room for the council to meet in, nobody will advance money or make himself liable for these expenses, and the thing was, when I left Melbourne, in February, 1844, at a dead stand.
As if to verify the vulgar adage that "It never rains but it pours," just before the arrival in the colony of the act of parliament, establishing these rural corporations in every county of New South Wales, the governor, with the advice of the old council, had established a municipal corporation in Sydney, and another in Melbourne, so that now we have no want of corporations, each with a salaried staff of warden, or mayor, treasurer, secretary, surveyor, &c. As when Truth, trampled under foot of men, fled from the earth, and took refuge ​in heaven, so the spirit of corporations, being bullied, and insulted, and reformed in England, seems to have taken refuge in New South Wales. But in her flight she has lost her gorgeous trappings, and her luxurious habits. "We have a mayor, it is true, but he reminds one of Martinus Scriblerus' simple idea of a lord mayor, abstracted from the notion of his horse-fur gown and gold chain. We have our aldermen too, but what is an alderman abstracted from the idea of turtle soup; he is the worse counterfeit of the two. Then we have our councillors, who answer more nearly to their European brethren. These officers are all elective. Seriously speaking, however, the corporations have shown an anxiety to be active in the discharge of their duties; but the general want of money, which is felt more in Melbourne than in the rural parts of the district, has naturally made them slow to impose heavy rates; while the ridiculous width of the principal streets makes the forming and keeping them in order to be accompanied by very great expense. The mayor's salary is three hundred pounds a year. He has, to a certain extent, to perform the duties of a police magistrate, there being none now at Melbourne, and also to preside at the meetings of the municipal council, which are held frequently.
* ↑ According to the estimate of the revenue for 1844, the sum likely to be raised from licenses and assessments will amount to £19,660, being about one-fourth of the whole revenue of the district.
* ↑ * There has been no document published on authority showing the sums disallowed; so that as to this point I had to depend on the reports of the proceedings of the council, published in the newspapers. They will be found, however, pretty correct, at any rate quite enough so for the present purpose. I cannot account for the omission of the last two items in the estimate; nor Is any provision made for the protectorate or missions. It is, however, probable that these will be discontinued.
* ↑ † It is a mystery to me how the mounted police, consisting of eighteen soldiers, receiving from 1s. to 1s. 2d. per diem; the border police, consisting of sixteen convict troopers, receiving no pay; and the black native police, consisting of twenty-eight aboriginal troopers, receiving no pay; even allowing £615 17s., (the amount of pay drawn by their officers,) and a liberal allowance for remounts, and wear and tear of horses, can cost £7,182 12s. for a year in a country where good horses can be had at from £15 to £20 each, where little or no artificial food is required for the horses, and where rations do not cost above £8 or £9 per man. At present their cost amounts to more than £100 per annum for each man, a pretty good allowance for convicts and blacks.
* ↑ By an act of council magistrates cannot hold petty sessions except in places proclaimed by the council, and there are only three of these in the district— Melbourne, Geelong, and Portland.
* ↑ With respect to the police force, there is such a mixture of parsimony and profusion, that I should perhaps have omitted mentioning it in the text. Their inadequacy may be inferred from the following facts:—There are in all seventy men, who are divided into four distinct bodies, totally independent of each other, and wearing different uniforms. Of these, the mounted police, who are commanded by a sergeant, are chiefly used in carrying despatches. The border police, consisting of twenty-four men, are divided into two bodies, of which one is in attendance on each of the two principal crown land commissioners, and are principally engaged in carrying out the squatting acts. The black police are the only body who are regularly officered, and whose other avocations do not interfere with their duties as police.
* ↑ A Mr. Phelps Robinson, in giving his evidence before a committee of the council, winds up with this pithy observation, "What this country wants for prosperity is, a better social system in the interior, coupled with industry and economy, and no political tinkering," a sentence which ought to be printed in large letters over the speaker's chair in the council chamber.
* ↑ This act is termed an act to restore public confidence, and contains a complicated scheme founded on the Prussian system of Pfande-briefe. The plan proposed is, to establish a board, who are to issue notes, which are made a legal tender between individuals, and also at the Treasury in payment of taxes, but convertible into gold or silver, on demand made to the colonial treasurer. These notes the Board is to issue, on receiving from the proprietor of land a mortgage on his property. They are to bear interest under certain regulations. In fact, government is to become the mortgagee of all the land in the country, in reality, its purchaser, and the unincumbered members of the community are to pay the purchase money.
* ↑ But more serious injury will be done if this bill has the effect of clogging the transfer of wool with such difficulties, as to shake the confidence of merchants in purchasing. We will suppose that A and B are two sheep owners, not very scrupulous in their mode of raising money. A mortgages the wool of the ensuing clip to an indifferent person, whom we will call X, who advances a large per centage on its value, and registers his mortgage. A shears rather early, and sells the remainder of his interest in the wool to B, who has an understanding with him. B takes it in his own dray, and offers it for sale to a merchant in Sydney, who makes searches against any incumbrances by B, but who has nothing to lead him to suspect that the wool was not grown by him. This merchant purchases from B, and stores the wool, and presently afterwards comes the original mortgagee X, and sells the wool to satisfy his claim, and the merchant can only claim the balance after X is satisfied, and must bring his action against B to indemnify himself. The possibility of the occurrence of a case like this is calculated to do an injury, and the very fact of a merchant having to make a search must operate as a clog on mercantile transactions. It is 80 far lucky, that the difficulty of identifying the wool on the sheep's back with the wool sold to the merchant will go far to prevent persons advancing money on this security, and so to neutralise its bad effect.