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22. 22 A Drawn Battle

CHAMBERLAIN DID NOT FAIL to show in a dignified way his disappointment at the trend of the negotiations, speaking almost contemptuously of the fear of responsibility evinced by the Premiers and with scarcely concealed annoyance at the public appeals made by the delegates at whose determined resistance he evinced surprise. Utilising to the full the antagonism of New Zealand, Western Australia and Queensland he was too good a general to be satisfied with a minority support, only one member of which had definitely accepted Federation. Barton and Kingston tried to the last to believe that he would in the end abandon his amendments. Their second memorandum, decidedly stronger in expression than the first, was met by an intimation from the Colonial Office that the written discussion was closed and the final Conference met on May 8th prior to the introduction of the Bill to the Commons where it was set down for the 14th. Coldly with impassive demeanour and sententious deliberation Chamberlain went straight to the central point of the discussion. The federating colonies had been met in every possible way. New Zealand's claims though reasonable had at their request been wholly put aside with those of Western Australia, which were still better founded and more desirable, though at his instigation Sir John Forrest had agreed to summon his Parliament to consider the question of referring the Bill to a Referendum. In the Bill itself the amendments asked had been reduced to a minimum, that affecting shipping was not pressed and others which were only of less importance had not even been suggested. Those now to be dealt with were but two in substance, a declaration that the Colonial Laws Validity Act would apply to Commonwealth legislation and the removal of the restriction imposed by clause 74 and the covering clauses upon the right of appeal to Her Majesty's Privy Council. After this exposition the Minister's voice began to vibrate, his accent to harden and his eye to gleam. The delegates had refused even to consider these amendments as they ought to have been considered. Barton's opening reference to ‘as few amendments

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as possible’ was quoted as inconsistent with the attitude since maintained. With an angry ring and great emphasis he declared that he was ‘disappointed and pained at the tone of the last memo’. He took particular exception to the imputation attributed to his Government that they had reflected in any way upon the character of Australian judges, and further concluded with the assertion that the attempt to prohibit even the slightest alteration of the measure however reasonable or necessary on the ground that it had been accepted by a vote of the electors was unwarrantable and indefensible; that no British Parliament could be coerced in this fashion and that the Government of which he was a member felt that it was its duty to insist that these two amendments upon which it set great importance should be made. An Imperial Court of Appeal had been offered and refused but would nevertheless be created without loss of time, but in view of the stand taken by the delegates for the whole Bill and nothing but the Bill, further discussion was clearly useless. The aggressive tone and character of the speech completely took Barton by surprise. He expressed the deepest regret that the negotiations should have resulted in a failure and attributed it to the inability of Ministers to realise the prolonged and often desperate struggle required to secure the Bill, many of whose clauses like that most under discussion were compromises which if disturbed might reopen endless and bitter controversies. With another regretful allusion to the surprise he felt at the determination of the British Cabinet, Barton, to the surprise of his colleagues, sat down without having intimated as they had agreed he should upon such an emergency, that under the circumstances they conceived their presence in London could be no longer necessary to the Imperial Government or useful to their colleagues. It was evident that the crisis to him so unexpected had driven this and other matters from his memory, so that after a few stately sentences of warning he sat suddenly down partly to check his rising temper. As for Kingston he was in danger of becoming inarticulate with suppressed vexation. He too dwelt upon the unutterable disappointment he felt and which would be felt all over Australia when the decision became known, declared the provision limiting appeals one of the most important provisions of the Bill, and protested that if so amended it would probably mean the rejection of the whole measure and shipwreck of the work of years all of which would be at the door of the Ministry. He too spoke with great brevity apparently doubting his own powers of self-restraint if he proceeded further. Dickson

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who had already by letter criticised the second memorandum and boldly declared for the amendment, now did so by word of mouth applauding the proposed amendment as strictly constitutional and desirable and thanking Her Majesty's Government on behalf of Queensland and the majority of Australia for taking such a step to preserve one of the most valuable links of Empire. Clause 74 was a mere detail, the demand made for the passage of every line of the measure unreasonable and the effort to override the judgment of the British Government and induce them to pass a provision of which they properly and gravely disapproved, was intolerable. Dickson following the others was brief and triumphant.

By this accident it happened again that Deakin was the longest speaker. Before Dickson sat down Kingston apparently just recollecting the threat arranged, abruptly interjected that if the amendments were to be insisted upon there was nothing left for the delegates but to pack up and go home. The officials present, scandalised and alarmed, looked first at each other and then with one impulse at Chamberlain whose set face gave no sign of his feelings, so that with a deprecatory remark from Sir Richard Webster the speech of Dickson proceeded to its close. Deakin again reviewed briefly the position of New Zealand and Western Australia and their claims pointing out that as predicted Chamberlain's appeal had brought them in without any alteration of the Bill; disclaimed the intention to refuse all consideration of all amendments; patent mistakes would have necessarily to be corrected in some way. He contended that the discussion had discovered none such but had merely proved that the Ministry of Great Britain held different views to the people of Australia as to Courts of final appeal from Australia on constitutional questions. There was nothing strange in this. But why put them in conflict? He did not himself consider the question taken by itself as one of first importance, but only because it involved a grave interference with the approved provisions of a measure twice endorsed by the electors. The amendment was now sought to be made to repair an omission of the Colonial Office which neglected its ample opportunities of asking that the compromise adopted in consequence of the remonstrance of 1897 should be further expanded. If it was essential the amendment should be made it ought to be by means of another measure authorising the Federal Parliament to alter this part of the Bill. If it was necessary to declare that the Colonial Laws Validity Act applied, though he thought it ought not to apply, this could be declared in the same Act. No amendment of the Bill was requisite

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to give effect to the wishes of the Imperial Government and to insist upon accomplishing its ends at the expense of the Commonwealth Bill was a fatal mistake likely to be fruitful of ill-will. He defended the memo both as to its matter and tone. Its frankness might not be diplomatic but it was a sincere attempt to convince and in no respect dictated by any other desire than to prevent mischief. He replied to Dickson, maintaining that the provision for constitutional appeals was inserted after thought because judges living under a Federal Constitution would be much more likely to interpret it correctly in the light of their own knowledge than would judges living under an unitary Constitution in Britain and seeking the aid of statutes and text-books only, to seize the spirit of Federal institutions. If this part of the Bill were altered any other part might be challenged. The anti-Federalists were those most to the front in the assault being made. If successful here why not upon the other issues upon which they were defeated in the Convention and at the polls? How could the majority of the electors be declared to be against this particular or any particular clause upon the verdict of their antagonists? Were newspapers, meetings or even Ministries to be taken as expressing the will of the people in face of their two recent overwhelming polls? There was but one constitutional method by which this Bill could be altered in substance and this was by the vote of the electors. Surely the appeal made to the British Government to allow the Australians who had managed their own affairs so long and so well to have another opportunity of considering this issue in the light of their knowledge of the wishes of the British Parliament and by another Bill empower them to amend the two points in dispute would not be disregarded. The Bill was dear to them all, not because they were among its progenitors only, but because it had been so dearly bought and because since its last adoption it enjoyed so to speak an universal parentage. The pride in it and love of it which the Australian people cherished were sentiments to be studied and not ignored and to be satisfied, not offended, and might be rendered a motive power of perpetual gratitude to the mother country if wise statesmanship in London would consent to achieve its ends without amending the Bill.

Chamberlain who had listened with great attention to all the speakers appeared softened by the speech and after Fysh had manfully endorsed the utterances of his three colleagues from his own standpoint, the Conference closed with less animus than it began. The delegates hastened to their room to despatch their

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final note of reply written by Deakin and little altered. The die was now cast. The Bill was to be amended after all before being introduced to the Commons. Exactly how far was not definitely known. So far however it was clear that Dickson was on the winning side and his colleagues out in the cold.

Chamberlain's speech to a crowded House of Commons was masterful as well as masterly. Campbell Bannerman read the one stinging phrase he had to deliver from a slip of paper apparently prepared in a party conclave. Dilke's speech, so far as knowledge and sound sense went, was what his nominal leader's ought to have been but it was spoiled by its timidities and would have needed much more spirit to be that of an opponent of Chamberlain, the several weaknesses of whose position were all passed over by the spiritless and vacuous opposition. The announcement of the disagreement with the delegates and of the determination of the Government to insist upon the omission of clause 74 and the consequential amendments created no such interest even from a party point of view as any similar announcement would have created in any Assembly in the colonies. Dickson was triumphant. But within a few hours a compromise had been suggested unknown to him which threatened the overthrow of his rejoicings. Chamberlain invited the delegates to dine with his asking Arthur and Gerald Balfour, John Morley and his Parliamentary Secretary to meet them; he had Barton and Kingston on either side of him with Balfour and Morley, Dickson, and Deakin, Gerald Balfour and Smith following. The situation was entirely changed. It was no longer of any use to argue that the Bill should not be amended. It was amended and drastically. Clause 74 was gone altogether. The only question was whether any part of it could be got back. Chamberlain had repeated in his speech that the British Government disclaimed all desire to interfere with Australian interests. Those it left to the Australians themselves. Its province was only to protect Imperial interests. The objection to clause 74 therefore was that under it, Imperial issues might be finally determined by an Australian Court which when interpreting the Constitution might enlarge its scope indefinitely to the prejudice of the rest of the Empire. The question naturally suggested itself whether clause 74 might not be restored with a limitation of its operation to distinctly Australian affairs. All this passed quietly between Chamberlain and his two neighbours towards the end of the evening, after Dickson and Deakin had left. On Wednesday 16th, Barton, Kingston and Deakin met to consider a first draft of the proposed

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clause 74 which came down from the Law Officers of the Crown in this form ‘Unless by the consent of the respective Governments concerned to be signified in writing in the case of the Commonwealth by the Governor-General and in the case of a State by the Governor no appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State upon the question whether as between the Commonwealth and a State or as between any two or more States any legislative or executive power is properly exerciseable by the Parliament or Government of the Commonwealth or by the Legislature or Government of the State.’ The first part of the clause relating to appeals by consent was inserted at the express desire of the Colonial Office, Chamberlain having been assured that according to Canadian experience the Privy Council would always be preferred to a local tribunal. The delegates were of an opposite opinion but regarded the introduction of this option with indifference. The remaining part of the clause gave back all they could define distinctly as Australian and shearing away all the vague and comprehensive jurisdiction trenching upon Imperial issues. On the 17th the three had a private interview with Chamberlain at his room in Parliament House at which he was, though somewhat elated, as precise, prompt and calm as ever. They then went to Finlay's room, he having become Attorney-General on Webster's elevation as Master of the Rolls, where a new draft was accepted. When the door closed upon them and left them alone, they seized each other's hands and danced hand in hand in a ring around the centre of the room to express their jubilation. The proposed amendment was wired to the Premiers who were pressed for an immediate reply. On Monday 21st, Barton being at Cambridge and no reply having been received from Australia, Kingston, Deakin and Fysh signed a short note accepting the new clause adding Barton's name by his authority, thus taking upon their own shoulders the sole responsibility. Late the same night the Premiers' endorsement excepting Philp's was received. The settlement was announced to an astonished House by Chamberlain, to the undisguised wrath and mortification of Dickson, who found himself deserted by the British Government and his colleagues welcomed to their arms. A more dramatic denouement to a parliamentary performance has rarely been witnessed.

Vowing vengeance Dickson, Griffith and the Queensland Government attacked the compromise clause with all their strength and

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unfortunately Chamberlain's proviso as to appeals by consent of the Executives gave them good ground for complaint. The real situation would have been unaffected by this had it not been for the wave of loyal sentiment sweeping over the colonies in consequence of the war and leading them to eagerly identify themselves with the mother country in every respect. The no-appeal provisions had never been really popular and now became unpopular as seeming to sever a tie, however slight, of the Empire. The Conservative classes, the legal profession and all people of wealth desired to retain the appeal to the Privy Council and had heartily and openly supported Chamberlain's proposed abolition of clause 74. Finding themselves defeated at the last moment they turned upon the delegates with fury. Lyne openly condemned them for arrogance and for ignoring local governments and the press even ventured to declare that an appeal must be made to the Lords against the Imperial Government which was deserting its duty and succumbing to three men in London. Their recall was openly suggested. Resolutions condemning the new clause were carried at many semi-public meetings while except the Australian Natives' Association, the South Australian Register and a few staunch allies, Symon, Downer and R. E. O'Connor, the whole of the voices of Australia shrieked censure upon the daring delegates. Though they neither introduced nor approved the introduction of the Executives which was made the chief point of attack, they felt bound to stand by it as part of their bargain with Chamberlain. The South Australian Government amidst stormy denunciatory cables from Kingston withdrew its approval and declared for the original Bill. Under Griffith's direction the Queensland Government announced that a Bill so seriously altered must be submitted to its Parliament before it could be accepted. New Zealand, Western Australia and Tasmania officially joined in the cry so that at the very last moment the Bill seemed in danger of being withdrawn and the Federal movement foiled, not because the proviso was included, but because the influential classes and the press were determined to strike out clause 74 and preserve an unrestricted right of appeal upon all issues. Under these trying circumstances Chamberlain remained outwardly calm and perfectly staunch to the four delegates, with great adroitness using the occasion so as to prepare for some concession agreeable to them, and which could at the same time save the face of Queensland. A suggestion emanating from Sir Samuel Griffith that the High Court might grant leave to appeal from itself or from a subordinate

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court to the Privy Council provided the golden bridge over which the delegates passed to union. Deakin who had left London and was travelling on the Continent while suffering from a carbuncular attack was pelted with telegrams every day, particularly by Kingston who was fiercely denouncing the Chief Justices for their intervention in the dispute, and especially his old leader and friend, Sir Samuel Way, for a secret memorandum of his which had been sent to London in advance of the delegates, and was inclined to include the South Australian Government among his antagonists because of their change of front. By letter and telegram Deakin continued to act with his colleagues. At the very moment when all the Governments were preparing and indeed anxious to surrender the compromise and to abolish clause 74 altogether, the intrigues were brought to [an] end by the final acceptance of the High Court for the Executive in appeals by consent. The fact that constitutional appeals remain capable of settlement by the High Court and that the Federal Parliament possesses the power of amending the law relating to appeals is due therefore entirely to the delegates. They prevented other undesirable amendments but they also secured these two important and significant powers to the Commonwealth.

The last stages of the embassy lifted the mask a little from one or two faces. They showed Lyne anxious to stab Barton and to disparage him and diminish his influence for his ulterior personal ends. They showed him also willing to postpone the Federation if an opportunity arose and anxious to magnify his own office and authority without scruple at its expense. They showed Griffith determined to risk the postponement of Union rather than accept a much smaller limitation of appeals than he himself had insisted upon nine years earlier, and obstinately declining to be bound by the Referendum in details as he had frankly declared in public some time before. Lewis and Forrest were willing to take the opportunity to secure the individual views they had advanced in the Convention; McLean was not unwilling to have his hand forced in the same direction by public clamour. Holder wavered too under pressure but fell back upon the Bill. The four delegates, very alone among the public men of the colonies, remained constant to the popular verdict and the determination of the Convention or as much of it as they could possibly obtain.