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• Assembly on the ground that the Bill would otherwise • be rejected in the Council.''
This, no doubt, is the language of political adversaries; but it suffices to show the spirit and nature of the conflict, and it is not probable that the members of the Council would care to dispute the bare accuracy of the facts enumerated. There is no doubt whatever of the reality of the constitutional crisis, which is sufficiently apparent from the mere fact of there having been in 1878 two distinct measures before the Legislature for the amending of the Constitution Act, and from the great but unsuccessful efforts made through the medium of a conference between the two Houses to find a basis of reconciliation. The objects of the Assembly are declared to be (1) “that the annual Appropriation Bill
should in no circumstances be rejected by the Council,' and (2) that definite legislative finality should be pro
vided with respect to all other Bills. As a means of securing the latter objeet, it was proposed that when a Bill, other than a Money Bill, had been passed by the Legislative Assembly in two consecutive annual Sessions of Parliament and rejected by the Legislative Council in each Session, it should—unless it were submitted to • and disapproved of by the electors for the Legislative • Assembly at a general poll'—be deemed to be a Bill which had been properly passed by the Legislative Council.
The Council in their turn refused to consider any 'proposal that implied any legislative inferiority' in their House, and that was inconsistent with its independence. They also propounded two schemes as bases of reform,
1. Further Correspondence respecting the Constitutional Question in Victoria,' 1879.
The Legislative Council not a House of Lords. 165
the chief features of which were that Appropriation Bills were not to contain any foreign matter, and that, in the case of continued disagreement between the Houses, the Governor might dissolve the Council at any time not within nine months of the legal expiration of the Assembly.
The Assembly proposed the reference of the rival Reform Bills prepared in the Council and in the Assembly to the general body of qualified electors; the result of a poll to be considered final, and to be carried into law by both Houses.
One difficulty which throughout has haunted the whole of this controversy has been the alleged parallelism of the Legislative Council to the British House of Lords. In his speech on opening the Session of 1878, the Governor, Sir G. F. Bowen, well said that the Constitution was intended to be fashioned on the model of the British Constitution, but “unhappily, the attempt 'to embody in comparatively rigid Statute Law the • elasticity inherent in the principles and practice of
that Constitution had not been completely successful.' The fact that the Council distinctly represents property, and the property of only a few, affords it a distinct and special claim to resist apprehended invasions of property rights with a resoluteness for which no suitable analogy can be found in the circumstances and temper of the House of Lords. Confining itself to this function, the Council will properly guard against all precipitate or selfish legislation which might proceed from the nonmoneyed classes ; but if it affects to stem legislation by interposing an absolute veto upon the will of a highly democratised majority, no mere formal appeal to the precedent of a House of Lords, the members of which are by long tradition, habitual contact, and an assemblage of unique moral and political conditions, in practical harmony with the bulk of the members of the House of Commons, can save it either from extinction or from an ignominious defeat which would reduce it to the status of the Second Chambers of some of the recently constituted Continental Governments.
A recent writer' has concisely described the situation by saying that the elements of the Parliamentary . Government at present existing in Victoria are in
capable of supporting a bi-cameral system strictly 6 analogous to Lords and Commons. Many suggestions have been made for meeting the difficulties of the position, besides those contained in the proposals of the Assembly and the Council, as embodied in their rival Bills for constitutional reform. It has been suggested that the Assembly might be made to include elements more distinctively representative of property; that in cases of dispute between the Houses, Conferences should take place with greater frequency and facility, and of a more organised kind, than at present feasible ; that in such cases of dispute the Houses should combine, so as to form one body, for the purpose of voting, but not debating, on the point at issue, and that some large majority, say two-thirds, should be needed to carry a measure; that 'plébiscites' should be more frequently resorted to, or that the Council should be re-elected at shorter intervals, so as to make it less of a permanent and aristocratic body. It is observable that every one of these proposals is destructive of what is the essence of a true bi-cameral system, the independence of the two
" Mr. G. Baden Powell, in the Fortnightly Review, June 1879, • Reform in Victoria.'
Chambers. The logical consequence of working out any of the above proposals, or any like them, is really that of substituting a single legislative body for two co-operating or conflicting ones. It is hopeless to expect that the rich few can finally control the many who are both rich and poor. With whatever cataclysms or shocks the artificial obstacles to the ascendency of the will of the numerical majority may be overthrown, overthrown they must be, as M. de Tocqueville long ago explained in the parallel case of the progress of democracy in the United States of America. The true and last lesson of democracy is, that a man's life consisteth not in the abundance of the things that he possesseth.
Before leaving the topic of Colonial Legislatures, it must be noticed that it has recently been laid down that the jurisdiction of such Legislatures extends no further than three miles from the shore. In 1855 the Law Officers of the Crown gave this as their opinion, when, referring to British Guiana, they said : We conceive that the Colonial Legislature cannot legally
exercise its jurisdiction beyond its territorial limits• three miles from the shore; or, at the utmost, can only • do this over persons domiciled in the Colony, who may
offend against its ordinances even beyond those limits, • but not over other persons.''
2. The history of the Government of India affords a good and memorable instance of the mode in which Parliament may gradually assume the direct and supreme government of every part of the British Dominions. This history comprehends the successive phases of (1) facilitation of trade, (2) organisation of government, (3), the reconstitution of the East India Company as a
· Forsyth’s Cases and Opinions, p. 24.
purely political body, and (4) the transfer of the Government of India from the Company to the Crown as controlled by Parliament.
The history commences with the Charter of William III. incorporating a second East India Company, dated September 5, 1698. The Charter purported to be issued in pursuance of an Act ‘for raising a sum not
exceeding two millions upon a fund for payment of * Annuities after the rate of eight pounds per centum
per annum, and for settling the Trade to the East • Indies. For a period of nearly eighty years, the Charters which were granted, as well as the Statutes which occasionally supplemented or enforced them, dealt almost exclusively with trade; and the organisation of the Company as a Joint-Stock Trading Association was the purpose of the so-called · Regulating Act' of 1773.1
So soon as the victories of Clive, and treaties with the native Princes, placed the Company in the actual possession of territorial acquisitions, Parliament passed Statutes for the purpose of confirming the Company in that possession for limited periods of years. Such Statutes were the 7th George III. cap. 57, and the 9th George III. cap. 24, which vested the acquired territory and revenues of the Company in them for periods respectively of two and of five years.
The first effective Parliamentary aggression on the independence of the Company-and, to some extent, also on the Prerogative of the Crown—was the passing of what is called the · Regulating Act. This Act recites that the several powers and authorities granted by • Charters to the United Company of Merchants of • England trading to the East Indies have been found,
1 13 Geo. III. cap. 63.