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21. 21 Struggle with Chamberlain

THE MEMORANDA OF THE DELEGATES were prepared by collaboration. First a general discussion as to the lines to be followed with a few notes taken by Barton and a few from Deakin. Kingston dictated long screeds in which he discussed the points at issue and any others that suggested themselves to his feverish energy at great length and with great freedom. These Barton read, appropriating any suggestion and then wrote a first draft usually written in the early hours after midnight which was submitted to his colleagues in council. His style was dignified, flowing, and often figurative but with a tendency to diffuseness, to become involved among parenthetical comments, and to present an indefinite outline. Kingston's task was to cut up his long sentences into several short ones and add phrases giving point and emphasis where he thought necessary. Deakin broke the whole into fragments and sometimes altered their order, finishing off where necessary and substituting simpler or more concrete phrases. When any differences arose between them, he rewrote the passages in dispute so as to meet the various objections urged and thus accommodated the views of Dickson and Kingston who were at opposite poles in regard to some matters. The reply of the Ministry was in much the same tone as that adopted by Chamberlain at his first interview and bore traces of his handiwork in every part. He was master of the situation and made no attempt to conceal it. His style of writing as of speech was peremptory, incisive, clear and in the nature of an ultimatum. A second memo was undertaken and prepared in the same fashion as the first [to] which in their turn the delegates delivered their counterblast declining to stir from their first position. This time however the tactics of the Colonial Office supplemented the attack of New Zealand and Western Australia by bringing over another and much more influential colony under their banner. The first two were not in the federating group and could be ignored as outsiders but the precarious position of the delegates became still more perilous and almost untenable when their important ally Queensland

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openly separated from them and in the person of her representative, Dickson, went boldly over to the enemy. When the second memorandum was presented it bore the signatures of four delegates instead of five. Mr Dickson wrote a letter of his own intimating his disagreement and declaring in favour of the amendments proposed by Chamberlain. This blow had been long preparing.

The colony of Queensland had not been represented at the Convention which drafted the Commonwealth Bill and though its electors had accepted it without qualification of any kind, as indeed they were obliged to do if they accepted it at all, there was not the same sense of responsibilty for the measure felt by its people or their representatives. Dickson himself like most commercial men was in favour of the retention of the right of appeal in all cases to the Privy Council and had always so avowed. But he was in this matter after all but the mouthpiece of the dominating personality in the northern colony, its former Premier and then Chief Justice, Sir Samuel Griffith, who having entirely changed his opinion since 1891 when he was in favour of abolishing all appeals to England, was now an ardent supporter of their maintenance. His force of character and reputation were such that the ministry became eager to manifest their agreement with him, and the Governor, Lord Lamington himself, ventured to telegraph and speak in open opposition to the Bill so far as it limited suitors to the Australian Court upon constitutional questions. Thus fortified Dickson was ripe for revolt and under the careful handling of the Colonial Office prepared himself to take public part against his colleagues so soon as decency would permit. He somewhat unwillingly consented to sign the first memorandum and made his hesitancy so apparent that after this he was carefully shadowed, so to speak, in his public utterances by having one of his colleagues detailed to follow and if necessary correct him. On April 5th a public conference was held at the Colonial Office at which Parker and Reeves appeared and stated their case. After they withdrew a warm discussion ensued in which Dickson gave evident signs of weakness. Nor was this to be wondered at considering the restrained vigour and emphasis with which Chamberlain addressed them. He had evidently recognised that the crisis had come. There were men before him who would not yield any more than himself upon the crucial question of amendment but he had also one or two who were wavering, who were being privately cajoled and could be publicly intimidated because they would not face the

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strain involved by a rupture with the British Government. Dickson and Fysh, while not more polite than their colleagues, had a deeper deference towards the authorities and a less assured position and less pronounced views on the points at issue. They were visibly apologetic. Chamberlain was almost tart in manner and led off with something like an attack upon the delegates' position at all points. The case of New Zealand he thought merited special attention as what was asked involved no sacrifice at all to the federating colonies. The case of Western Australia was stronger. It was admitted by the Bill that a special concession was due to her and the extension of this asked was really trifling. It was in the highest degree desirable that the continent at least should enter the Union at once and grave risk was being run by the refusal to make even this trifling sacrifice to attract them. These questions he admitted were for the federating colonies themselves as being of domestic concern only. As for the matters to which he had called their attention at the previous Conference, they were on quite a different footing. He must reiterate that Her Majesty's Government were still convinced that amendment was essential. The Colonial Laws Validity Act ought to be distinctly accepted as applying, but above all the Appeal to the Privy Council must be maintained intact. Upon that point there could be no withdrawal from the position already taken up. He thought the delegates should ask for power from their several governments to consent to these amendments and should advise them that this enlargement of their appointment and action under it were necessary to secure the passage of the Bill. The omissions from his speech were significant. The Shipping and other amendments were no longer insisted upon. So much the delegates had gained. Barton replied at once that in the nature of things it was not competent for delegates to consent to an amendment of a measure twice adopted after prolonged discussions by the whole body of the electors, and that it was not wise to press for alterations which would involve the delay and expense of a third Referendum. Nor was it reasonable to expect that the various governments should be obliged to face such a contingency, though if any request were to be preferred to them it would come much more appropriately from Mr Chamberlain himself. Kingston followed with the firm declaration that he was not prepared either to ask or accept further authority from the colonial Ministries though he saw no reason why the Colonial Office should not seek their opinion if they desired to have it. On this question it must be remembered that

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they had to deal with the whole body of the electors and that the Convention of 1891 composed of representative men from the whole of the colonies went the length of prohibiting any appeals of any kind to the Courts of Great Britain. He argued that the Australian Courts were the Queen's just as much as those which sat in London and that they had demonstrated their capacity by the number of cases in which their judgments were upheld and that their knowledge of local conditions was often invaluable. He for one was not prepared to reflect upon them. He concluded with an appeal that the good understanding between the colonies and the mother country should not be disturbed at such an unseasonable moment. Dickson was vague and inconclusive but far less decided, the substance of his remarks being directed to show his anxiety to act with his colleagues and with the Government and his hearty approval of the appeal to Australia. Fysh said little or nothing, leaving early to represent the delegates at a City Lunch for which they had accepted invitations. Deakin dealt first with the claims of New Zealand and Western Australia which his colleagues had simply brushed aside, pointing out that the chief interest of New Zealand was admittedly that of retaining her imports of £2,500,000 a year into Australia, that the chief task of the first Federal Parliament would be the framing of a tariff devised to meet the interests of the federated colonies and to yield a certain revenue. No such tariff could be framed and no estimates of revenue or expenditure adopted which would apply whether New Zealand entered or not. If after the tariff was prepared and passed New Zealand chose to enter without warning, the consequences would be disastrous and the whole work would need to be done over again. The concession to Western Australia was small but it was entirely the fault of her own representatives in the Convention and of her Premier at the Conference of Prime Ministers in 1899 that this was not then conceded to them. She was trying to repair her own omissions and her own neglect in a Bill which he personally would have been happy to amend in this direction if it were his own private measure, but which neither the delegates nor the Ministers who sent them had now any title to amend. In the same way he did not regard clause 74 as of the first importance taking into account its permission of double appeals from State as well as Federal Courts but it was passed as an amendment of the previous proposal of 1891 to meet Mr Chamberlain's own objections made to the Premiers in 1897, and that inasmuch as it was never challenged by the Colonial Office

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before the first Referendum on the Bill, nor when the Premiers were afterwards sitting in Conference considering this among other proposed alterations before the second Referendum, they were entitled to conclude that it was accepted as sufficient and that therefore the time was now gone by for altering it. If it was to be altered at all it ought not to be in this Bill but another measure might be passed through the British Parliament at the same time as the Commonwealth Bill giving the first Federal Parliament power by Bill or resolution to restore all or any part of the right of appeal taken away by clause 74. The generosity of the British Parliament would, he felt sure, be repaid by an immediate endeavour in the Australian legislature to meet their wishes as far as possible. Deakin spoke at greater length than his colleagues and dealt more specifically with points made by Chamberlain, though the proceedings as here summarised in brief included a conversation maintained for some time after the speeches and resumed at an extemporaneous lunch prepared in another room of the office. The net result of a debate that was at times warm but never personal and in which the law officers took their share, was that the same evening Chamberlain cabled his appeal to the Premiers while the delegates cabled at the same time to warn them in a general way in regard to it.

Dickson all this time was in constant communication with his Government upon whom he hoped to place the responsibility for his desertion. Next day Barton, Kingston and Deakin telegraphed suggesting that any proposed reply of the Conference of Premiers had better be submitted to them before presentation, and referring the Premiers to the supporters of clause 74 in the colonies for arguments in reply to Chamberlain's cable. Fortified by the advice of the Federalists, McLean, Holder and Lyne sufficiently influenced Philp and Lewis to prepare a draft answer to Chamberlain which was cabled to London; Barton, Kingston and Deakin hereupon revised it. They struck out of the first paragraph an admission that ‘Imperial interests were involved in the question as to Appeals’, introduced in the second paragraph the assertion that clause 74 would not work injuriously to any part of the Empire and admitted only that the new Court proposed ‘might perhaps present attractions’ instead of ‘would doubtless’ present them as the Premiers persisted in saying. They also urged in vain in paragraph 3 the insertion of the words ‘The Premiers feel it their undoubted duty to strongly represent that either of these courses (i.e., amendment or postponement) would be distasteful and harassing and would

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try the patience of the people.’ In the fourth paragraph where the Premiers ‘respectfully urge’ that ‘the voice of the Australian people’ should receive ‘favourable consideration’ the three delegates begged them instead ‘to earnestly deprecate’ amendments on the ground that ‘its adoption would do much to impair the general benefit to the Empire to which recent events have conducted’. They went on to add that ‘in their opinion the proposed message would without these alterations probably be taken by the Imperial Government to amount to an invitation to alter the Bill contrary to the decision of the Australian people, and especially are paragraphs 3 and 4 dangerous as they leave room for the Imperial Government to throw the onus of amendments on the Premiers instead of undertaking responsibility of nullifying the effect of successive referendums, giving victory to the minority and at the very least causing aggravating friction or equally aggravating delay. Delegates are hopeful that Premiers will stand firm and they believe that Imperial Government will give Bill as asked rather than accept the dangerous responsibility of delaying Federation by a third Referendum or otherwise. Even if delay results, Australia will not obtain less than is now offered.’ The appeal was however in vain, and again the wires were set to work after the reply had reached Chamberlain, to endeavour to counteract its mischief. Barton begged the Chairman to telegraph further to prevent the fatal misunderstanding, created by their retention of paragraph 3, by strenuously opposing any alteration and concluding ‘In view of distinct instructions given at departure which have been loyally observed we should not be deserted.’ In addition each of the three cabled his own Premier urging them to severally declare against any amendment even if the result was that Queensland and Tasmania openly indicated their consent. The replies received were all to the effect that nothing more could be done unanimously and if pressed further the Premiers of Queensland and Tasmania would have openly declared against clause 74 and in favour of its omission. Lyne added that Philp in this matter was acting upon the advice of Dickson who strongly advised submission. A day or two after he declined to sign the second memo, in which the delegates nailed their colours to the mast and finally refused to countenance any amendment. Upon his presenting himself at the next meeting of the delegates Kingston refused to proceed with any business or continue any discussion in his presence, and as a consequence Dickson formally withdrew from councils in which he had taken little or no part for some time.

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The breach was complete. Fysh, despite his Premier's action, declined to be moved. Whatever his three colleagues thought best he was prepared to endorse and though he too did not practically interfere with their procedure, he continued to support them in the most loyal and uncompromising fashion. Their position, serious before, began to be almost untenable now. New Zealand, Western Australia and Queensland were in open array against them, their own Premiers were giving them but a lukewarm support and cablegrams from their colonies were being published indicating that the press and influential organizations were against them. The London press as a whole was antagonistic to them on the merits of the issue and even the Liberal papers gave scanty encouragement. Dickson, Reeves, Parker, had at their back also Sir Julian Salomons, Agent-General for New South Wales and leader of its Bar whose term of office was just drawing to a close and who publicly attacked clause 74 at the dinner of the City Liberal Club with an emotion which rendered him almost speechless. This extraordinary demonstration on his part was fostered by his own strong anti-Federal feelings and his professional feeling, but largely as a response to the three delegates who, deserted in Australia and officially opposed in London, entered upon a new campaign and in a very novel quarter. Putting their backs against the wall they accepted every one of the public invitations to dine showered upon them by Clubs, Guilds and public bodies and constituting themselves missionaries preached the gospel of the Bill without amendment, no matter what toast they proposed or replied to or what the nature of the gathering might be. It was a new experience for jaded London diners to be pleaded before as if they were juries hearing a patriotic cause and its novelty rendered the experience evidently rather palatable to men even in search of a new sensation. The situation was in a sense comic but the delegates were in deadly earnest. They were to some extent the lions of the season and they roared their best for their Bill.

The humour of the situation was not all apparent. The Colonial Office in its anxiety to make the most of the visit of the delegates in its own interest and to render them more susceptible to its wishes, had set to work all the social and political machinery of the Tory and Unionist parties to provide as many occasions as possible for parading their overseas guests before the world. They were entertained on behalf of the Government by Mr Chamberlain privately and officially, by Lord Lansdowne, Lord James of

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Hereford, Lord Hopetoun, Sir Richard Webster, Sir Robert Finlay and by supporters of theirs such as Lord Windsor as well as by Lord Rosebery, Sir Charles Dilke, Mr Bryce and other leading Liberals. At these dinners, at many lunches and at private interviews the delegates managed among them to convey their side of the question in a conversational way to most of the makers of public opinion in London, in Parliament or in the press. Quite a number of Chamberlain's colleagues appeared convinced of the equity of the Australian case; even his seniors, Arthur Balfour and the Duke of Devonshire, must have put to him some awkward questions as to the wisdom of the policy he was pursuing. But it was at the large public dinners, many of them given in their honour, at which they contrived to reach the great body of the politicians, business magnates, and influential personages then in London. The British Empire League brought His Royal Highness and his son the Duke of York with nearly 500 guests to hear Mr Barton; the National Liberal Club not to be outdone brought as many members of its party headed by all its chiefs; the City Liberal Club following suit in similar fashion; the Constitutional Senior and Junior, the Devonshire, the St Stephen's, the Press, the Eighty and the Anglo-Saxon and the Colonial Clubs, the Goldsmiths, Mercers, Iron-mongers, Fishmongers and other guilds, the Colonial Institute, the South African Association, the National Conservative Union, the Primrose League and London Chamber of Commerce were among those who provided them with great gatherings to address and to these they appealed with all their power. At one or two the proceedings became almost stormy; at the City Liberal Club Barton and Sir Julian Salomons came into conflict; at the Colonial Institute, being challenged and contradicted, Deakin broke into a fiery harangue and at the Devonshire, Dickson and he, to the mixed delight and alarm of the assembly, replied hotly to each other as to Lord Lamington's right to publicly comment upon the point in dispute. By this means altogether some three thousand influential persons were reached and many of them favourably disposed towards the delegates' contention. The Colonial Office had in its own interest presented them with the best possible audiences, which they straightway proceeded to convert into its critics and antagonists. The press very imperfectly reported the speeches, especially as they were always in the same vein, but even their attitude was modified by the constant efforts of the delegates to reach their principals and the success of their efforts in capturing the ear of the leading men of both sides. The irony and novelty

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of the raid upon what were mainly Tory strongholds made by three Australian Liberals, against their colleagues, against their Agents-General except Fysh [and] Cockburn, against their own Premiers and press, against the British Government, the Tories as a party and the Unionist press, imparted a relish to the affray which relieved the monotony of its argument by the variety of the assemblies to which it was addressed.

The three speakers were of very different style and could therefore afford to speak together as well as apart and often did, all three in one evening. Barton became so indoctrinated with his theme and so habituated to regard it as of the first importance to all who heard him that at a little private dinner given by the proprietors of Black and White he gave his amazed and wearied listeners forty-five minutes of close technical legal reasoning upon clause 74. He had no set speech but one fixed line of thought embodied in the memos which he picked up now at one place, now at another, and finished off when he was tired though never having exhausted it. Kingston had two speeches which he alternately separated and mixed, punctuated with patriotic passages delivered with great and genuine fervour and occasionally adorned with a new passage. Deakin sought to suit his speeches to his company and varied his theme as much as possible. His rapidity of utterance and interchange of moods were much more un-English than the deliberate weightiness of Barton or the spasmodic curtness of Kingston. Dickson had a good address and erred only in the length of his address but he had few opportunities of delivering it. Fysh spoke equally rarely, in a pleasant and general way supporting his friends. How far the tactics adopted by the three belligerents were successful it is impossible to determine. They certainly served to impress the Government with a sense of their earnestness and also perhaps with their capacity to influence their own people when they returned. It made them numerous friends and gave them a much better standing both in public and private as it became plain that they were far from being nonentities and might be measured against all but the very best English speakers at the gathering which they attended. They may have achieved much more, but at least they kept the contest alive and full of interest and in the public eye.