The Colonial Government Bill 1864

Abstract

As the crisis in Australia caused by the increasingly eccentric and uncompromising opinions of Mr Justice Benjamin Boothby reached its climax in the first half of the 1860s, Sir Frederic Rogers, the permanent head of the Colonial Office, drafted the Bill for what was to become the epoch-making Colonial Laws Validity Act 1865 (Imp.) in collaboration with the Law Officers of the Crown. However, he also had a broader project in mind. Rogers commissioned a barrister friend, Thomas Haddan, to draft a Bill which approached, although it did not quite reach the heights of a code of colonial constitutional law, to Rogers’ own agenda. The Colonial Government Bill 1864 has lain unseen in the files of the Colonial Office since its completion, for the change of Colonial Secretary in April 1864 seems to have doomed the project—that, and perhaps also the first stirrings of something completely new in what is now Canada. The Bill would have introduced a number of interesting novelties in colonial constitutional law. Most notably, it would have entirely abolished judicial review of colonial legislation—certainly an answer to Boothby J.’s abuse of that judicial power, but a stance that might have been adopted also in the Empire’s federal dominions that were about to arise.