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late in the field as an infraction of liberty of speech,
the right of free-born Englishmen.

Not a few, to whom the words "ballot" and "universal
suffrage " suggested ideas of democracy, republicanism,



304 THE HISTORY OF SOUTH AUSTRALIA. [CHAP. X.

and anarchy, thought that the knell of the colony's ruin
had been sounded. As the time for the elections drew
near it was found that to fill the fifty-four seats in the
two Houses, namely, eighteen to the Legislative Council
and thirty-six in the House of Assembly, there were
twenty-seven candidates for the former and sixty-two
for the latter, making a total of eighty-nine. On the
day of nomination the discovery was made that nine
candidates were unopposed.

The 9th of March was the day fixed for the elections,
and it was announced that it would be a public holiday.
Those who had witnessed the quiet and orderly manner
in which the several candidates were nominated had
no doubt come to the conclusion that what many con-
sidered the glory of an election had departed. There
had been no banners and ribbons, no music and orations,
no shouting and fighting. The returning-officer had
simply opened and read the letters proposing and
seconding the various candidates, and this, with three
cheers for the Queen, concluded the proceedings.

The Electoral Act provided for the conduct of the
elections in a similar quiet and orderly manner. There
were to be no hustings, and the booths or polling-places
were to be a specified distance from a public-house.
No wonder, therefore, that on the day of election people
were seen quietly resorting to the polling-places as if
they were going to exercise a national right and perform
an important duty. This done, there was no induce-
ment to linger at the spot, as it was provided that there
would be no declaration of the state of the poll until
the final stage was reached. It was a striking contrast
to the scenes enacted at the last elections, and all
sober-minded people congratulated themselves upon the
reform.*

* The result of the elections for the first South Australian
Parliament was as follows :

Jj'or the Legislative Council.

G. F. Angas, H. Ayers, C. H. Bagot, T. Baker, S. Davenport,
Dr. C. Davies, Dr. C. G. Everard, J. H. Fisher. A. Forster, A. H.
Freeling, E. C. Gwynne, G. Hall, Major T. S. O'Halloran, J. Mor-



1857.] MEETING OF FIRST PARLIAMENT. 305

For the election the colony had been divided into
"districts" and "divisions," the former electing members
for the House of Assembly, the latter for the Legislative
Council. The members for the latter House were to
represent the whole colony, hence the dividing of it for
the purpose of facilitating the elections. The members
of the House of Assembly were to represent the districts
which elected them, and the number of representatives
for each district was regulated, as far as practicable, on
a population basis.

By direction of her Majesty the members of the
Legislative Council and the Speaker of the House of
Assembly were to have the title of "Honourable" con-
ferred upon them, and were officially to be addressed
as such while occupying seats in the said Council, and
the Speaker while holding office in such capacity. The
members of the Executive Council (or of the Ministry)
were also to enjoy a similar privilege or honour.

On the 22nd of April the new Parliament met, about
a thousand persons assembling on North Terrace to
witness and cheer the arrival of the members and the
Governor.

phett, A. Scott, W. Scott, E. Stirling, and W. Younghusband,
= eighteen.

For the House of Assembly.

City of Adelaide : R. R. Torrens, R. D. Hanson, F. S. Button,
B. T. Finniss, J. B. Neales, W. H. Burford.

Port Adelaide : J. Hart, J. B. Hughes.

West Torrens : L. Scammell, J. W. Cole.

Yatala : J. Harvey, C. S. Hare.

Gumeracha : A. Blyth, A. Hay.

East Torrens : G. M. Waterhouse, C. Bonney.

The Sturt : T. Reynolds, J. Hallett.

Noarlunga : T. Young, H. Mildred.

Mount Barker : F. E. H. W. Krichauff, J. Dunn.

Onkaparinga : W. Milne, W. B. Dawes.

Encounter Bay : B. H. Babbage, A. F. Lindsay.

Barossa : W. Duffield, H. Dean.

The Murray : D. Wark.

Light : J. T. Bagot, C. S medley.

Victoria : R. R. Leake.

Burra and Clare : G. S. Kingston, M. Marks, E. J. Peake.

Flinders : M. MacDermott.

VOL. I. X



30f> THE HISTORY OF SOUTH AUSTRALIA. [CHAP. X.

There is something really amusing, but at the same
time very splendid, in this inauguration of a Parliament
for South Australia. Let the reader try and realize it.
The whole population of the colony was estimated at
109,000 ; that is to say, fewer by some hundreds than
are to be found to-day in such towns in England as
Brighton, Bolton, Portsmouth, Leicester, or Cardiff, and
considerably less than half the population of Bristol,
Nottingham, or Bradford. The territory of the colony,
on the other hand, was nearly three times as large as
that of the whole of Great Britain ; that is to say, it
comprehended an area of 300,000 square miles, or
192 millions of acres. Only twenty years before, the
land was practically uninhabited, with here and there
a wattle-and-dab hut, or a canvas tent ; population, and
a certain amount of wealth, had poured in from all
quarters, but ruinous reverses had been experienced.
Out of these the people had struggled, holding on with
tenacity to each success until it had been made more
successful ; throwing off one by one the leading-strings
of paternal government until they attained political
manhood.

To this handful of people, sixteen thousand miles, by
sailing ship, away from England, composed of men,
not as a rule those who had made their mark in the
old country, or who were acquainted by practical expe-
rience with the usages of the Imperial Parliament, but
simply a body of sturdy, loyal, and enterprising Eng-
lishmen seeking in one of the rising commonwealths of
Greater Britain to perpetuate the institutions of their
native land to them was committed a system of respon-
sible government involving the principles of universal
suffrage, vote by ballot, equal electoral districts, and
triennial Parliaments, together with the absolute control
of revenues hitherto under the Crown, namely, the
proceeds of the sale and lease of the waste lands within
the province, and the unfettered management of the
public purse, whether in taxation or expenditure. It
is equally a wonder that the Imperial Government
should have had sufficient confidence in the ability,



1857.] RESPONSIBLE GOVERNMENT. 307

loyalty, and discretion of the South Australians to
entrust them with such a responsibility, as that men
should have been found prepared and eager to accept
it. " It must be confessed," said the London Times
in a somewhat sarcastic article, "that it is rather an
odd position for a new community of rising tradesmen,
farmers, cattle-breeders, builders, mechanics, with a
sprinkling of doctors and attorneys, to find that it is
suddenly called upon to find Prime Ministers, Cabinets,
a Ministerial side, an Opposition side, and all the
apparatus of a Parliamentary Government to awake
one fine morning and discover that this is no longer a
colony, but a nation, saddled with all the rules and
traditions of the political life of the mother country."

Saddled with cumbersome and costly Government
machinery the colony certainly was, and, in addition, it
was subject to abuses to a great extent irremediable.
For example, the power of governing was placed, by
universal suffrage, in the hands of those who not only
possessed the smallest stake in the colony, but were
the least intelligent. It is amusing to remember that
while the Constitution Act was under consideration, an
endeavour was being made to establish an educational
test, at least to the extent of reading and writing, as
some guarantee of fitness for the exercise of the
franchise ; but even this was overruled by the demo-
cratic element in the Council as constituted at that
time.

Nevertheless, with all the drawbacks, inevitable in
the circumstances, the colonists hailed responsible
government with enthusiasm, and after it had been
tested by experience, they would not for any considera-
tion have returned to the old state of affairs.

There was much work to be done on that auspicious
day when the first South Australian Parliament met
the reading of the proclamation for assembling the
Parliament, and of the commission for taking the usual
oaths ; the election of President for the Legislative
Council (the Hon. J. H. Fisher), and of Speaker for the
House of Assembly (Mr. G. S. Kingston), and to arrange



308 THE HISTORY OF SOUTH AUSTRALIA. [CHAP. X.

the order, by lot, in which one-third of the Council
should retire every four years. Then came the opening
address, dealing first with the financial state of the
province and then with the measures which would
claim the attention of Parliament, including a Bill with
regard to waste lands, an Education Bill (leaving
untouched, however, the principle of the existing law),
and other Bills relating to public works.

It was not to be expected that all the new machinery,
now put into motion for the first time, would work well
and smoothly at the start off, and it was not long before
there was a decided "hitch." The first important
disarrangement threatened to produce a deadlock.
The occasion which brought the two Houses into
collision was an amendment by the " Council " of a Bill
passed by the " Assembly." The alteration made
affected the principle of the Bill, and went so far as to
strike out a clause providing for the repeal of the dues
upon shipping. This was considered by the Assembly
to be a breach of its privileges, and they passed a
resolution calling upon the Council " to reconsider the
Bill, inasmuch as it is a breach of privilege for the
Legislative Council to modify any money Bill passed
by this House."

This resolution was met by another in the Council,
that " the policy pursued by the Ministry in attempting
to legislate by resolution only in one branch of the
Legislature is detrimental to the interests of the colony,
subversive of the Constitution, and calculated to bring
about a collision between the two Houses of Parlia-
ment." This resolution was, however, withdrawn, and
the alternative course was a battle on the question of
privilege or a peace conference. The former course was
chosen, and, alter an adjournment for the preparation
of the estimates, the matter came on for debate.

It would not interest the general public to follow the
long and wearisome discussions that ensued ; suffice it
to say that for a considerable time public business was
delayed ; a long-winded opinion of the President, who
was learned in the law, was obtained ; much good



1857.] A "PRIVILEGE QUESTION." 309

temper, time, and eloquence were wasted on both sides,
and in the end only a feeble compromise was effected.
Still there were some points of interest in the great
" Privilege Question," as it was called, that are worth
recording. When it was found that there would be
a deadlock unless some way of escape could be
devised, a conference was agreed upon, and committees
were appointed by both Houses to draw up " reasons "
for the position taken up on either side. Those of the
Legislative Council were to the effect that there was
no analogy between the Imperial Parliament and the
Parliament of South Australia, inasmuch as the British
Upper House was hereditary and that of the province
was elective, and as such was as much a guardian of the
public purse as the Assembly, and further, that, with the
exception of " originating " money Bills, the powers of
the two colonial Chambers were equal. It was contended
that the word " originate " should be taken in its sense,
and applied only to the introduction of any money Bill.
The Assembly, on the other hand, stood up for the
analogy between the powers possessed by the British
House of Commons and the colonial House of Assembly,
and that, notwithstanding the fact that the term
" originate " had not been defined by either legislative
or judicial interpretation, both Houses must be influenced
by reasons drawn from analogy as to the practice and
privilege of the Imperial Parliament, and that, of course,
reason and practice were conclusive in favour of the
view of its privileges taken by the House of Assembly.
That House further contended that as the right of the
House of Commons to originate money Bills was
claimed by that House, and had always been allowed
by the Crown and the Lords as a common-law right,
the claim of the House of Commons of excluding the
House of Lords from modifying or altering such money
Bills was a Parliamentary privilege inherent in, and
flowing from, that right ; therefore, as the Constitution
Act vested in the House of Assembly the exclusive
right of originating money Bills, the right to exclude
the Legislative Council from modifying or altering



310 THE HISTORY OF SOUTH AUSTRALIA. [CHAP. X.

such Bills was by direct and necessary implication also
conferred.

Such being the attitude of both parties, public business
was at a standstill until the feeble compromise aforesaid
was effected. Briefly, it was as follows : That while
the Assembly should originate all money Bills, it should
be competent for the Council to suggest alterations ; but
should those suggestions not be heeded, the Bills might
be returned by the Assembly for reconsideration, and
be either assented to or rejected by the Council. The
Council still claimed its right to deal with the monetary
affairs of the province, but would nofi enforce its right
to deal with the ordinary details of the annual expenses
of the Government.

These " concessions " were almost unanimously agreed
to, and the crisis was averted for the time being.

Another important feature in this first session of
Parliament was the frequent changes in the Ministry.
The first, consisting principally of the Executive
members of the former Legislature, held office until the
20th of August, having, after several defeats, tendered
their resignations on the 10th of that month. The next
was known as the Baker Ministry (Hon. John Baker,
Chief Secretary), and held office from the 21st to the
27th, when, on a vote of want of confidence moved by
Mr. Torrens, they resigned, and the Torrens Ministry
came in and held office from the 1st to the 24th of
September, when, Mr. Hanson having moved an adverse
vote declaring a certain proclamation of the Governor
to be " unwarranted and illegal," he was called upon
to form the Hanson Ministry and so on.

During this session Mr. (afterwards Sir) E. R. Torrens
introduced his celebrated Bill for the transfer of real
property, which has created more interest and brought
about a greater reformation in the law of real estate
than any measure ever enacted thereon either in
England or in the colonies. No serious objections
were raised against it at the time, and the Bill passed
its third reading in the House of Assembly on the 15th
of December with a majority of twelve, and in the



1857.] TORRENS 1 REAL PROPERTY ACT. 311

Legislative Council on the 26th of January, 1858, with
a majority of five.

The design of Mr. Torrens was not only to dispense
with transferring real estate in the first instance by
deed, but also in every subsequent transaction where a
deed would have been considered necessary.

"The first great principle of the Act," says Mr.
Harcus, " is the transferring of real property by regis-
tration of title instead of by deeds ; the second is
absolute indefeasibility of title. The system is very
simple and very inexpensive. The certificate of title
is registered in the official registry at the Lands' Titles
Office, the owner obtaining a duplicate certificate. All
transactions affecting the land appear on the face of the
certificate, so that at a glance it may be seen whether
the property is encumbered or any charges are made
upon it. If an owner wishes to mortgage his land, he
takes his certificate to the office and has the transaction
marked upon it. If he wants to sell, he passes over
the certificate to the purchaser, and the transaction is
registered. Any man of ordinary intelligence can do
all that is necessary for himself, when once his property
is brought under the Act." *

The cost was nominal. A percentage of one half-
penny in the penny was paid, when the land was for
the first time brought under the law, to ensure the
soundness of the transaction, and from this fund the
State guaranteed to protect rightful proprietors when
lauds were brought by others under the Act. It was
satisfactory to know that this provision was almost
superfluous. When the accrued fund had reached
30,000, only 300 had been required to meet de-
mands.

After accomplishing his arduous task, Mr. Torrens
took a trip early in 1860 to the neighbouring colonies,
where he met with a series of ovations, and was hailed
as a general benefactor, each colony being anxious to
put a similar law into operation. On his return he
was appointed to the office of Eegistrar-General for

* " South Australia : its History and Kesources," by W. Harcus.



312 THE HISTORY OF SOUTH AUSTRALIA. [CHAP X.

the purpose of carrying out the measure. Various
honours were heaped upon him, and he was subse-
quently knighted. It was not to be expected that Mr.
Torrens would be able to carry everything before him
in peace. Jn 1860 two cases of litigation arose relating
to breaches of contract on the part of purchasers of
land, and resulted in a keen contest between the legal
profession and the friends of the Act. The decision
of the judges was adverse to the Act, and it was
determined to carry the case to the Court of Appeal,
when Mr. Justice Boothby made the singular discovery
that under the New Constitution Act no such tribunal
existed !

It was while this case was under judicial considera-
tion that fourteen members of the legal profession,
drew up a lengthy petition to the Duke of Newcastle,
Secretary of State for the Colonies, praying that the
Eeal Property Act might be referred to the law officers
of the Crown for their opinion as to its legality and
validity, before it received the assent of her Majesty.

Several colonial lawyers had, prior to this, addressed
a letter to the Attorney-General, in which they ex-
pressed their opinion that the new Act was repugnant
to the laws of England, and offered to draw up a fresh
Bill. This offer was declined with thanks.

Then occurred a long series of public meetings and
debates. The long-winded and utterly wearisome
discussions would not interest anybody if they were
reproduced, even in the briefest outline, here. Like
most other reforms, this important and beneficent one
had to encounter and overcome opposition from nearly
all quarters its advocates in their excess of zeal over-
stated its strength, while its opponents left nothing
undone to find out its weak points. It was not in
human nature that lawyers who had made small
fortunes by their tedious " provided always " and " and
whereas" could sit still and contemplate these time-
honoured forms, which had been considered indis-
pensable to a good title, being ruthlessly swept away ;
still less could they gaze upon vanishing six and eight-



1857.] ME. JUSTICE BOOTHBY. 313

pences and thirteen and fourpences with equanimity.
What wonder, therefore, that they aroused themselves
and fought to the death !

But the go-ahead South Australians were neither to
be browbeaten nor hoodwinked. They saw that the
old system of conveyancing (still adored in some old-
fashioned countries the mother country, to wit) was
costly and cumbrous, and failed to give that security
which is the only excuse for costliness, whereas the
new system under the Real Property Act was simple,
cheap, and secure. Moreover, it was specially adapted
to meet the need of a colony where land was a common
possession and a matter of daily bargain, instead of
being the luxury of the few, and when once possessed
.was rarely parted with, except under circumstances of
necessity.

Of course, there were imperfections in the system
on its first introduction, but this is not so much a
matter of wonder as that these imperfections were so
few and were easily remediable, while its needs of
amendment pale into insignificance beside the protracted
legislation which has been found necessary in the
mother country to bolster up the principles of the old
system, to remove its anomalies, and to simplify its
procedure.

From these discussions on the Real Property Act,
there sprang up another one of the most painful, and
withal notable, in the annals of the colony. It may
be well, perhaps, to tell the story in this place, although
the case dragged its weary length along for years. The
facts were briefly these :

Mr. Justice Booth by having expressed his doubts as
to the validity of certain Acts passed by the colonial
Legislature, on the ground of their repugnance to the
laws of England, rendered himself obnoxious to the
Parliament, the press, and the public, and this was
greatly increased when he went so far as to absolutely
decide in the Supreme Court against the validity of
the Eeal Property Act and other Acts which had not
then received the royal assent. A motion for the



314 THE HISTORY OF SOUTH AUSTRALIA [CHAI-. X.

appointment of a Select Committee "to examine into
the recent decisions and conduct of His Honour, Mr.
Justice Boothby, and to report thereon " was opposed
by Mr. G. F. Angas on the ground that the whole
matter turned upon hearsay and newspaper reports.
But the motion was carried, and Mr. Angas was one
of those chosen to act upon the committee.

Before this tribunal Mr. Boothby declined to appear ;
and this fact, perchance, added to the bitterness of the
report of the Committee, a report from which Mr.
Angas very strongly dissented, on the ground that the
evidence adduced distinctly proved that the colonial
judges had power to declare illegal and invalid Acts
which had been passed by the Legislature of the
colony, assented to by the Governor, and left to their
operation by her Majesty, which was borne out by
various decisions of the Courts of Law in other colonies
and in England, and was consistent with the recog-
nized and admitted principles of constitutional law.
On this and on many other grounds, he stood out in
defence of Mr. Justice Boothby, and a storm arose. So
great was the outcry that meetings were held in
various parts of the colony for the purpose of hearing
the respective members give an account of the action
each had taken in the matter.

By-and-by a petition was sent to the Queen, praying
her to remove Mr. Justice Boothby from the bench, but
it failed in its object ; and instead of the judge being
reprimanded, as some confidently anticipated, the
colonial Legislature received a severe censure from the
Home Government.

Not satisfied with this, a second address to the Crown
was forwarded in 1866, to which the Secretary of State
for the Colonies replied that the ex parte statements
against the judge were insufficient grounds for his re-
moval, and that unless the colony would agree to have
the question argued before the Judicial Committee of
the Privy Council, the local Government must deal with
the case themselves.

This they resolved to do, and in June, 1867, a series



1857-66.] MR. JUSTICE BOOTHBY. 315

of charges were preferred against Mr. Boothby, who
simply protested, but took no steps to defend himself.

The specific charges laid at his door were presented
to Parliament in the following resolutions : " (1) That
he persistently refuses to administer laws duly enacted
by the Parliament of South Australia. (2) That he
declines to give effect to the Imperial statute known as
the Validating Act. (3) That he is accustomed from
the Bench to impugn the validity of the local Court of
Appeals. (4) That he refuses to conform his judgment
to the decision of the Supreme Court. (5) That he
obstructs the course of justice by perversity and
habitual disregard of judicial propriety. (6) That he
has delivered judgments and dicta not in accordance
with law."

The matter was ably and lengthily debated in the
Legislative Council, but on the motion for the removal
of Mr. Boothby, Mr. Augas seconded an amendment
for inquiry and report by a Select Committee, which
was lost. In his speech he pleaded for justice and
impartiality, for calm and dispassionate inquiry, in-
stead of " presenting to her Majesty's Privy Council
mere declarations sought to be proved by newspaper
reports, and even by the reports of the very men who



Online LibraryEdwin HodderThe history of South Australia from its foundation to the year of its jubilee (Volume 1) → online text (page 27 of 34)