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11. CHAPTER XI

DEFEAT OF THE MARTIN MINISTRY—MR. WILLIAM FORSTER FIRST ‘SENT FOR’—FIRST PARKES MINISTRY FORMED—STRANGE UNCONSTITUTIONAL PROCEEDINGS OF THE LATE MINISTERS—THEIR UNPRECEDENTED DEFEAT AT THE BALLOT-BOX—ARRIVAL OF SIR HERCULES ROBINSON—HIS CHARACTER—REFORMS IN DEPARTMENTAL MACHINERY—PROPOSALS TO REFORM BOTH THE ASSEMBLY AND THE COUNCIL—HIGH APPOINTMENTS BY THE MINISTRY.

EARLY in 1872 the Ministry, having sustained defeat in the Legislative Assembly, obtained the power to dissolve from the Earl of Belmore, who was on the eve of vacating the office of Governor, and who did actually leave the colony a few days afterwards. The first elections told plainly that the advice given by Ministers had been ill-judged, that they had unquestionably lost the confidence of the country; but in the midst of defeat and condemnation they continued to hold office for three months. I with others took an active part in awakening the country to a sense of the danger from this state of things, where only the convenience or the perverse will of the defeated Ministers appeared to be consulted. I wrote letters in the public press; I sought the opinions of persons admitted to be constitutional authorities; and on my motion the Assembly carried an amendment to the Address in reply by thirty-six to eleven votes in the following words:—




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It is a matter of deep regret to us that the circumstances under which the late Assembly was dissolved, and the present Parliament assembled, are of a character to call for the expression of our disapproval.

It has been communicated to us that a monetary arrangement was entered into between your Excellency's Advisers and a private Banking Institution, during the progress of the elections, and the protracted delay in convening Parliament, which, in derogation of the Constitution, interferes with the undoubted and sole power of this House in granting supply to Her Majesty, and seriously impairs its just control over the public expenditure.

We feel constrained to take the earliest opportunity to condemn a course of conduct in the administration of affairs as dangerous to the public interests, and which we are anxious may not be again resorted to.

While these things were going on, several points in the larger question—What is the thing which the term Responsible Government designates in a colony?—presented themselves, with more or less force, to my mind; and my individual views on these special points, fortified by authorities which could not well be impugned or doubted, found expression in my letters. The soundness of the views expressed I submitted to the test of reason by impartial enquiries; and in their publication no desire was felt by me to promote the interest of any particular party, but only to assist in mitigating the abuses of Government, whoever might be in power.

I contended that it could not be a question of light interest to anybody how the country was to be governed. It concerned every person in every relation


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of life. No man was above or below the consequences.

I held the opinion that our system of government might be made a blessing or a curse, according to the degree of sensibility to the principle of responsibility entertained by those whose chief business was to govern, and the degree of subserviency to the views of the executive entertained by those whose chief business was to represent the country. If Ministers were sufficiently lax in their notions of their obligations to the Constitution, and the Representatives of the People were sufficiently lax in their notions of the trust reposed in them, there would be little check upon the abuses of power, and it would be difficult to fix a limit to the tricks, devices, evasions, man[oelig]uvres, and manipulations, and the invisible arts of corruption in the practice of these, by which a worthless administration might be supported. In all times good men had made efficient government, and systems had failed to convert unstable, unprincipled, and scheming men into good and efficient governors. The vitality that was infused into Parliamentary government, in one age by Chatham and in another by Canning, though the rule of each was brief, and the paralysis it sustained at the hands of the Cabal and the Coalition, were pointed to as illustrations of this historical fact.

Not the least part of the evil flowing from any violation of the true principles of Parliamentary government was the infectious influence which it communicates to the electoral bodies. Where the carrion is, the crows and kites will congregate. Be the waters pure


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and life-giving, or noxious and charged with the seeds of pestilence, the stream flows from its source ever downwards. No greater affliction could befall a free country than the violation of the political sentiments of the people.

I copy two of my letters as they appeared at the time. They express the views which I formed then, and which I still hold, of the unjustifiable character of the transactions of those three months.

‘LETTER I.

‘There seems to be an opinion abroad, apparently received without enquiry, that it is a constitutional practice for a Minister retiring from office to advise the Crown as to his successor. Whether the representative of the Crown in this colony has at any time permitted such practice I do not pretend to say, but it is known that on some occasions no such advice has been given or sought, and it is undeniably the fact that nothing of the kind has ever occurred in modern times between retiring Ministers in England and the Sovereign.

‘It will occur to the mind of any person capable of reasoning on the subject, that it would be a logical absurdity for a Minister who has forfeited his position as adviser of the Crown, by the tender of his resignation of office, still to be permitted to advise as to the person who is to be his successor. Having himself failed to obtain the support of Parliament in his Ministerial capacity, how can he be the right person to advise who


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is likely to succeed in securing that indispensable support in the government of the country? Having as Minister passed outside the boundary within which he can be held responsible to Parliament for his advice (for by his resignation he has paid the utmost penalty which Parliament can exact), is he then to advise, without responsibility, on the momentous question of the formation of another Government?

‘For many years after the accession of the House of Hanover the Whigs sought to establish in their party a power of nomination to the office of Premier. The resolute self-will of George the Third broke down this pretension of the great Whig families. Although the prerogatives of the Crown, as sought to be exercised during the long reign from 1760 to 1820, have since been circumscribed and defined in the interest of the popular branch of the Legislature, all modern statesmen are agreed that the right to select the First Minister, absolute, unrestricted, and uninfluenced, belongs to the Crown alone, and that the only party in the State entitled to offer advice in the matter is the Parliament itself. That principle of Parliamentary government, clear and distinct, has come out of the constitutional struggles of two centuries. That principle is stated very concisely, but very emphatically, by a well-known historian, who has himself held high office in the Parliament and the Government of England. I quote from Massey's “History of England during the Reign of George the Third,” vol. iii. p. 213.

‘ “If there is one rule better established than another by the Constitution of this realm, it is this, that the


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Sovereign has a right to choose his Minister, subject only to the approval of Parliament.”

‘So far back as 1812, while the contention for power between the Crown and the Ministers was still going on under the Regency, Mr. Canning, in the House of Commons, delivered himself thus:

‘ “The Right Hon. Gentleman, and those on his side of the House, seemed to consider that the great families and connections of this country had a kind of right to interfere in the nomination of Ministers. He himself, who was so very humble an individual, who could not boast of any of those high connections, and who, perhaps, though unknown to himself, was influenced by those circumstances of his humble rank, did not certainly believe in the existence of any such right or pretension in the aristocracy. He thought that, in the very best spirit of the Constitution, the Crown had exclusively the appointment of Ministers, subject, of course, to the control or advice of a free Parliament.”— [Parliamentary Debates, vol. xxiii. p. 455.]

‘Fifteen years afterwards Mr. Canning asserted this principle in his personal conduct by declining to be a party to carrying out the wish of the King, that he and his colleagues should nominate a peer to the office of Premier in the place of Lord Liverpool. The negotiations resulted in Mr. Canning being authorised by George the Fourth to reconstruct the Ministry; and though Mr. Peel (afterwards Sir Robert), the Duke of Wellington, Lord Eldon, Lord Bathurst, Lord Westmoreland, Lord Bexley, and others refused to serve under him, and though a protest against his assumption


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of the premiership, signed by eight dukes, was presented to the King, threatening their organised opposition, Mr. Canning succeeded in forming the first Liberal Ministry of this century, bringing into the Cabinet Lord Lyndhurst, Lord Palmerston, and Mr. Huskisson. So far from any person advising the King to “send for” Mr. Canning, Mr. Canning was “sent for” in spite of the influence of all the great ruling families.

‘When, in the early part of 1846, dissensions arose in the Peel Administration on the policy of repealing the Corn Laws, and Lord Stanley determined to retire, Sir Robert Peel tendered his resignation to the Queen, and he explained his conduct in these words to the House of Commons:

‘ “While I retained the hope of acting with a united Administration, while I thought there was a prospect of bringing this question to a settlement, I determined to retain office and incur its responsibilities. When I was compelled to abandon that hope (my sense of the coming evil remaining the same), I took the earliest opportunity, consistent with a sense of duty and of public honour, of tendering my resignation to the Queen, and leaving Her Majesty the full opportunity of consulting other advisers. I offered no opinion as to the choice of a successor. That is almost the only act which is the personal act of the Sovereign; it is for the Sovereign to determine in whom her confidence shall be placed.”—[Hans. Debates, vol. lxxxiii. p. 1004.]

‘In 1852 the first Derby Ministry was defeated on their financial policy, and Lord Derby announced their


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resignation in the following terms in the House of Lords:

‘ “Having had a distinct declaration of want of confidence on the part of the House of Commons, and having ascertained that my colleagues unanimously concurred with me as to the only course we ought to pursue, I proceeded to wait upon Her Majesty, and to tender to her, in my own name and that of my colleagues, the humble resignation of our offices. Her Majesty was pleased to accept our resignation; and signified her pleasure, which was acted upon in the same day, to send for and take the advice of two noblemen, members of your Lordships’ House, both of them of great experience and considerable ability—of long practice in public life.”—[Hans. Debates, vol. cxxiii. p. 1701.]

‘The two noblemen alluded to by Lord Derby were the Marquis of Lansdowne and the Earl of Aberdeen; but it is clear that the Queen did not ask the retiring Minister for any advice on the expediency or propriety of seeking the counsel of those statesmen. She simply informed him, not as a defeated Minister, but as a peer of the realm and a Privy Councillor of great weight and consideration, of the course she intended to take. It is only in one or other of these latter capacities that English statesmen are ever asked for advice on the selection of the First Minister, because both Peers and members of the Privy Council are responsible to Parliament for the advice they give, whether in office or not. Persons enjoying either rank, and of high standing from personal services and experience in public affairs, have occasionally been asked for such advice, when they


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neither belonged to the retiring, nor were expected to belong to the incoming, Ministry. This was the case with the Duke of Wellington and the Marquis of Lansdowne in their later years. When Mr. Disraeli resigned in December, 1868, the “Times,” on the following morning, stated that there could be no doubt but that the Queen would seek the advice of Earl Russell in the first instance, on account of his long connection with the Liberal Party and his great experience, though it was equally certain that Mr. Gladstone would be entrusted with the formation of the new Government, as the general election had clearly pointed out the latter statesman as the future Premier. [‘Times,’December 3, 1868.] But Her Majesty sent direct for Mr. Gladstone, who, at the time, was at Hawarden Castle, more than 200 miles from London; and, though the Cabinet Council, at which Mr. Disraeli and his colleagues determined to resign, was held late in the day on December 2, Mr. Gladstone had an audience of the Queen, at Windsor, at 4 P.M. on the following day. Another of the great daily journals spoke of the Queen's relation to the Ministerial crisis in the following words:

‘ “The English system of government does not, as is sometimes fancied, go of itself. It is not an automatic contrivance, nor an engine which a child may feed or tend. To discern the real meaning of popular or Parliamentary contests; to act as the interpreter of the national mind; to select its truest representative; and to give effect to its will, are offices involving grave responsibility and calling for more than ordinary intelligence and judgment. To do these things is part of


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the business of an English monarch. Constitutional Kings and Queens cannot but have, like humbler people, their own political opinions and personal preferences. The high impartiality and the controlling sense of public duty which, amid the changes of party government, have for a generation kept the private feelings of the Sovereign in abeyance, deserve record and honour.”—[Daily News, December 5, 1868.]

‘We know from an unimpeachable source the patriotic view which the reigning Sovereign has always taken of her duty on the occasion of a change of Ministry. The wise and lamented Prince, who was her dearest adviser in life, has told us how scrupulously Queen Victoria guards herself from any personal feeling or any consideration in conflict with the feeling of her Parliament and her people, in selecting her First Minister. Speaking in the House of Lords on the death of the Prince Consort, Earl Russell said:

‘ “I happen to know from the late Prince himself the view he took of the duty of the Sovereign in such a case. He stated to me, not many months ago, that it was a common opinion that there was only one occasion on which the Sovereign of this country could exercise a decided power, and that was in the choice of the First Minister of the Crown. The Prince went on to say, that in his opinion that was not an occasion on which the Sovereign could exercise a control or pronounce a decision; that when a Minister had retired, from being unable to carry on the Government, there was at all times some other party which was prepared to assume the responsibilities of office, and was most likely


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to obtain the confidence of the country. But, he said, a transfer having been made, whether the Minister was of one party or the other, he thought that the Sovereign ought to communicate with him in the most confidential and unreserved manner with respect to the various measures to be brought forward, the fortunes of the country, and the events that might happen — that whether he belonged to one party or another, the utmost confidence should prevail between the Sovereign and the Minister, who came forward in Parliament as the ostensible possessor of power.’—[Hans. Debates, vol. clxv. p. 44.]

‘Earl Russell went on to give the weight of his own opinion on the beneficial effect of this unbiassed and scrupulous conduct on the part of Her Majesty in the working of Constitutional government. He continued:

‘ “I do, my Lords, attribute in great measure to that opinion which the Sovereign held in common with the Prince, the fact that there has been no feeling of bitterness among any party in this country arising from exclusion, and that all parties during these twenty years have united in rendering that homage to the Sovereign which the conduct of Her Majesty has so well deserved, and the country still reaps the benefit of the good counsel which the Prince Consort gave to the Crown.”—[Hans. Debates, vol. clxv. p. 44.]

‘It appears, then, that it is not only the exclusive right, but the duty of the Crown, in view of the public interest, to exercise an independent judgment in selecting the First Minister, and that Her present


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Majesty has uniformly disregarded her own feelings and preferences in the performance of this duty. It is equally clear that it is not the practice for retiring Ministers, as such, to offer or to be requested to give advice on such a grave and delicate subject, and that any such practice would be in conflict with the theory of Ministerial responsibility. This part of the case is very lucidly stated by Mr. Todd:—

‘ “A retiring Minister may, if requested by the Sovereign, suggest that any particular statesman should be empowered to form a new Administration, but such advice should not be obtruded on the Sovereign unasked. Being debarred by his own resignation, or dismissal from office, from the constitutional right to tender advice to the Crown, he can only do so, if required, in the quality of a Peer or a Privy Councillor; being still responsible in that capacity for any advice he may give to the Sovereign.”—[Todd's Parliamentary Government, vol. i. p. 222.]

‘I have stated the case as I find it elucidated by the most trustworthy records and authorities, and I do not believe a single authenticated instance from modern practice in England can be adduced in opposition to the view I have explained. The Governor, as the representative of the Crown, has few duties to perform which devolve exclusively on his function as Governor, and of these few duties the most important are to decide independently when advice is tendered to dissolve Parliament, and to decide independently on committing the executive power to new hands. In calling a Member of Parliament to the service of the Crown, he is


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not—to use the words of the Prince Consort, as quoted by Earl Russell—“to exercise a control or pronounce a decision” in determining the special character of the change, but he is, like Her Majesty, to select the person who, in his judgment, taking into consideration political experience, party relations, capacity for public business, and representative character, is “most likely to obtain the confidence of the country.”’

‘LETTER II.

‘It is said that Lord Belmore's reasons for the late dissolution will, when they become known, be satisfactory to the public mind. What species of argument can have been employed to justify that transaction to the Secretary of State seems at present beyond conjecture. In view of the whole range of the Governor's intercourse with the Minister, from the date of the acceptance of office until the date of the advice to dissolve, the Dissolution appears without precedent or justification. On the supposition of a case so improbable as that the Governor had allowed himself to be drawn into a position which did not leave him entirely free to exercise his judgment on the state of circumstances which arose, it may be that the acting on the Minister's advice could be justified under the qualification of the embarrassments imposed upon him. But the exigencies of any such case in no way remove, but rather aggravate, the questionable character of the transaction. The Governor ought to be entirely free and unfettered, “to discern the real meaning of popular or


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Parliamentary contests,” on all such occasions, and to act on a true interpretation of them. When the late Earl Grey advised the memorable Dissolution on the Reform Bill of 1831, he declared that nothing but success would justify the advice he had given, and the same doctrine was held in the House of Lords on a recent occasion. If dissolving the Parliament of the country was a game of haphazard, any person who happened to be Minister could, of course, advise it without blame, and any person who happened to be Governor could assent to the advice without regard to the public interests. But it is the exercise of an extreme power under the Constitution, to be resorted to only in extreme cases, and when there is a rational belief that the views of the Legislature are not in accord with the views of the country. Hence the obligation upon those concerned, both the giver and the receiver of the advice, “to discern the real meaning” of the conflict out of which the advice arises.

‘All the features of the late Dissolution are open to criticism and, I think, severe censure. The comparative newness of the late House, the embarrassed state of public business caused by Ministers themselves in not convening Parliament at an earlier date,note the general manifestation of an adverse public opinion, the large majorities in the Assembly by which the Administration was defeated,note the Supply not granted for the current


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year—all these grave circumstances were against the Dissolution. Not only the considerations arising out of this state of things, but the very important circumstance that the Governor was about to vacate his Government, and the knowledge of the fact that his successor could not arrive in the colony for many months, was an additional reason of great weight why the House ought not to have been dissolved.

‘It is a most unusual thing for the Governor of a colony to dissolve Parliament on the eve of giving up his Government; and it seems to me extremely doubtful whether such an exercise of power can be justified by any reasoning from precedent or analogy in the Government of England. The examples of the English system do not, and cannot, apply in all cases to the systems of Parliamentary government established in the colonies. The conditions of political existence are in many respects essentially different. Thus, there exists no true type of Sovereignty in relation to our Parliament, the Crown being practically held in abeyance in all intercourse with this branch of the Government, and its place supplied by an Imperial officer for a fixed term of years. But the forms of intercourse between the Sovereign and the British Parliament are preserved and adapted to our condition as much as possible. It will, therefore, be admitted, I presume, that where the conditions are not the same, the spirit of the Constitution ought to exact conformity of action in the closest approach to Imperial practice which our different circumstances will permit. It is not possible to conceive of the Crown dissolving the Imperial Parliament on the


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eve of abdication or of death. On the contrary, every precaution has been taken to render it impossible for such an event to occur at a time when the nation is without a Parliament. Although by common law the Parliament expires with the King, a statute was passed in the reign of Anne which continues it in existence six months after the death of the Sovereign, and requires it immediately to assemble, although it may stand adjourned or prorogued at the time. In the event of a dissolution having been granted previous to the demise of the Crown, the Act 6 Anne, c. 7, revives the defunct Parliament for a like period. Admitting the difference between a change of Governors and a change of Sovereigns, it is a difference inevitable from the nature of things, and not one designed as an improvement upon the Constitution which is our model, nor one that can be held to justify a flagrant disregard of constitutional rule and expediency. If it is considered neither expedient nor safe for the nation to be without a Parliament on the accession of a new Sovereign, it cannot be desirable, to say the least, that this colony should be without a Parliament when it receives a new Governor.

‘But the dissolution was altogether unjustified by English precedent or usage. In 1831 Parliament was dissolved on the advice of Earl Grey, who said that “he should not have been justified in recommending it if he had not felt assured that the course he proposed to pursue would be ratified by the decision of the nation.” The result proved that Earl Grey had “discerned the real meaning” of the contest. After the passing of the Reform Act, the Parliament elected under


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the old state of the law was dissolved, December 3, 1832, to make way for the election of the reformed House of Commons. Sir Robert Peel, in 1834, being called upon to form an Administration as the successor to Earl Grey and Lord Melbourne, advised a Dissolution on the broad intelligible ground that he proposed an entirely new policy. The next Dissolution was on the accession of Her present Majesty, in 1837, and had no political significance. In 1841, Lord Melbourne, being defeated on a motion of want of confidence, by Sir Robert Peel, by a majority of one (312 to 311) in a full House, advised Her Majesty to dissolve, which advice was accepted. The appeal to the country was made on the policy of lightening the burdens on trade and commerce. Sir Robert Peel's second Administration remained in office till 1846, when, after carrying the repeal of Corn Laws, he was defeated by a combination of Whigs, Radicals, and Protectionists. That great Minister was then at the height of his popularity, and the Parliament was five years old; he did not, however, advise a Dissolution, but retired from office. In 1847 Parliament, under the first Administration of Lord John Russell, was dissolved by effluxion of time. In 1852, Lord Derby, coming into power, announced the policy of returning to modified protective duties, and on that policy he obtained a Dissolution. In 1857 Mr. Cobden moved a vote of censure on the Chinese War under Lord Palmerston's first Administration, which was carried by a majority of sixteen. On the advice of Lord Palmerston Parliament was thereupon dissolved. So well had the veteran Premier “discerned the real


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meaning” of the contest, that he came back to the House of Commons with a clear majority of eighty-five, while Mr. Cobden himself lost his seat. The second Derby Administration was, in 1859, defeated on their Reform Bill, and obtained a Dissolution. Under Lord Palmerston's second Administration, Parliament was dissolved, in 1865, without political significance, having lasted more than six years. Lord Palmerston died before the assembling of the new Parliament, and Earl Russell became Premier, Mr. Gladstone assuming the lead of the House of Commons. This Administration was defeated on June 18, 1866, by Lord Dunkellin's amendment on their Reform Bill, and they resigned office, though it was generally understood that the Queen would have granted them a Dissolution. The last Dissolution was in 1868, when Mr. Disraeli appealed to the new constituencies under his own Reform Act, on Mr. Gladstone's proposal to disestablish the Irish Church. On finding the electoral returns against them, Mr. Disraeli and his colleagues resigned before all the elections were concluded—namely, on December 2, the writs being returnable on the 10th. The following is a copy of the Prime Minister's circular to his supporters:—

‘ “If Parliament were sitting I should not have adopted this course; but as the public acts of a Ministry should not be misunderstood, and as there are no other means of explaining their motives, I have taken the liberty of thus addressing the Conservative members in both Houses of Parliament.

‘ “When Her Majesty's Government, in the spring of


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this year, were placed in a minority in the House of Commons on the question of Disestablishing the Church in Ireland, they had to consider that the policy proposed had never been submitted to the country, and they believed that the country would not sanction it.

‘ “They therefore felt it their duty to advise Her Majesty to dissolve Parliament; but to make an appeal to the obsolete constituency would have been an absurdity, and the candid opinion of the country coincided with that of Parliament, that no course could be satisfactory unless the voices of the enlarged electoral body were ascertained. All means were, therefore, taken by the Ministry to expedite that appeal, and a special statute was passed for the purpose.

‘ “Although the General Election has elicited, in the decision of numerous and vast constituencies, an expression of feeling which, in a remarkable degree, has justified their anticipations, and which, in dealing with the question in controversy, no wise statesman would disregard, it is now clear that the present Administration cannot expect to command the confidence of the newly elected House of Commons.

‘ “Under these circumstances, Her Majesty's Ministers have felt it due to their own honour, and to the policy they support, not to retain office unnecessarily for a single day. They hold it to be more consistent with the attitude they have assumed, and with the convenience of public business at this season, as well as more conducive to the just influence of the Conservative party, at once to tender the resignation of their offices to Her Majesty, rather than to wait for the assembling


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of a Parliament in which, in the present aspect of affairs, they are sensible that they must be in a minority.

‘ “In thus acting, Her Majesty's Government have seen no cause to modify those opinions upon which they deemed it their duty to found their counsel to the Sovereign on the question of the Disestablishment and Disendowment of the Church. They remain convinced that the proposition of Mr. Gladstone is wrong in principle, probably impracticable in conduct, and, if practicable, would be disastrous in its effects.

‘ “While ready at all times to give a fair consideration and willing aid to any plan for the improvement of the Church in Ireland, to the policy which they opposed last Session, rife, as they believe it to be, with many calamities to society and the State, they will continue, in whatever position they occupy, to offer an uncompromising resistance.

‘ “B. DISRAELI.

‘ “Downing-street, December 2, 1868.”

‘Here are all the Dissolutions of the Reformed Parliament from 1831 to 1868, and where will anything be found giving a colour of sanction to the Dissolution of the Assembly in February last?

‘Parliamentary Reform, the Financial Policy of the Country, the justice of a Foreign War, the Disestablishment of the Church, were the broad questions submitted to the electors. But what is more deserving of notice is the hesitation and forbearance with which English statesmen, especially those at the head of the Liberal party,


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approach the prerogative of Dissolution. With the single exception of the appeal made by Lord Melbourne, their advice has always been justified by the result. They have on all occasions “discerned the real meaning” of the contest, and been successful.

‘Nothing can be more unwarranted by reason and precedent than the notion, loosely entertained by some few politicians, that a Ministry is entitled to a Dissolution when they encounter defeat in Parliament because the House was elected under the Administration of their predecessors. That would be reducing a principle of the Constitution to a mere rule of child's play—“It was your turn last, it is my turn now!” The circumstances under which the existing Legislature was elected may be fairly considered, with many other circumstances, when the whole question of the expediency of dissolving it is under review; but not because other persons filled the offices of Government when the election took place. Those circumstances would form matter for consideration as part of the case for the decision of the Crown, just to the extent that the questions of policy formerly submitted to the electors may be held to affect the questions again to be submitted, but only in reference to the public interest, and not in deference to the supposed claim of a defeated Ministry.

‘In the arrangements for the elections and the assembling of the new Parliament, our Administration is equally at fault. In England the new House of Commons must be called together by law within thirty-five days from the issue of the writs. On the


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30th instant, Sir James Martin will have continued himself in office eighty-nine days, without a Parliament, since he caused the late Assembly to be dissolved. The English writs are issued with the least possible delay; here they were delayed several days to suit the electioneering plans of the Ministers. The election for East Sydney was then hurried through within five days, and that for West Sydney within seven days, notwithstanding the long delay which has since taken place in convening the new Parliament, the principal Ministers themselves being candidates for those electorates. No time ought to be lost in restraining by legislation the power of Ministers to trifle—not to say tamper—with the Constitution, and to impair the public value of their own appeal to the people, by making the arrangements for a General Election subservient to their own official interests.’

On the constitutional questions involved in these lamentable proceedings, I wrote to Professor Hearn, the author of the ‘Government of England,’and I give our correspondence on the subject here:

Sydney, April 24, 1872.

Sir,—I take the liberty of sending to you two numbers of the ‘Sydney Morning Herald’which contain letters of mine under the signature of a ‘Constitutionalist’on questions of Parliamentary government, which appear to me to be pressing for consideration by these Australian Communities.

With your permission, I will state the case of this colony at the present moment.

Sir James Martin accepted office as First Minister on December 16, 1870. Parliament had then been in Session


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several months, and little business had been done, chiefly owing to the weakness of the previous Government. The new Ministry, on this account, very properly received much consideration from the Assembly during the latter part of that Session, although much dissatisfaction was felt at the manner in which the new Administration had been formed. As the financial year of New South Wales terminates on December 31, that Session properly belonged to 1870. On prorogation (June 22, 1871), Sir James Martin took a recess of 144 days, not calling Parliament together for the Session proper to 1871 until November 14, when it was quite impossible to consider the estimates and transact the necessary business within the year. During the recess the First Minister and two of his colleagues had attended a conference at Melbourne, which, in the general opinion here, resulted through their incompetency to the discredit of this colony. The proceedings of the Administration at the conference, and other causes, led to their early defeat by decisive majorities, on which Sir James Martin obtained the power of Dissolution. Supply had been voted for the month of January only when Parliament was dissolved on February 1. Four out of the six Ministers with seats in the Assembly were defeated by their former constituencies, and only Sir James Martin himself succeeded in obtaining election elsewhere, though all of them stood a second, and one of them stood a third electoral contest. The new Parliament is convened for the 30th instant, eighty-nine days after the Dissolution. In the meantime the Bank of New South Wales, under some arrangement not explained to the people, pays the salaries of the civil servants, on the heads of the departments, as I understand, making over their interest in them in anticipation of an Appropriation Act.

It is in this state of things that my letters have been written, and I should highly esteem the favour if you could give me your views on the questions raised.

Your obedient Servant,

HENRY PARKES.




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University of Melbourne, April 30, 1872.

Sir,—I have to acknowledge the receipt of your letter of the 24th instant, and of two ‘Sydney Morning Heralds’containing the letters to which your letter to me refers. The third paper has not yet arrived.

I do not think that it would be proper in me to volunteer an opinion upon the course which in the particular circumstances of the case the late Governor of New South Wales, or his adviser, thought fit to pursue. With reference, however, to the general questions of constitutional law, on which only, I presume, that you wish for my views, I have no difficulty in expressing my opinions.

As to the propriety of a retiring Minister advising the Crown in the choice of his successor, I concur in the views you express in your letter to the ‘Herald,’and I have nothing material to add to the authorities therein cited. In the Victorian Constitution Act, and I presume in that of New South Wales also, the distinction is clearly marked between the political officers whom the Governor alone appoints, and all other officers whom he appoints with the advice of his Executive Council. I fancy that the popular notion has arisen from the exaggerative doctrine that the Crown can do no act without some responsible adviser. Under colonial constitutions such as ours, the choice of a Ministry, or at least of a Premier, seems to me to be a duty cast upon the Governor of the same nature as his duty in superintending the issue of the public revenue. With respect to the prerogative of Dissolution, I have said all that I have to say in the ‘Government of England,’pp. 154–499. It seems to me that the limited duration of our Parliaments makes the exercise of this prerogative a matter of much greater delicacy than it is in England. So far as I have been able to judge, it appears the great stumbling-block to Australian Governors. There appears to me to be one plain practical rule in the matter, viz. that a Dissolution ought never to be tried until every other means of carrying on the Government has been exhausted.




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Your own research on these subjects has rendered any citation of authorities on my part superfluous. Perhaps you will permit me to call your attention to the English Reform Act of 1867 or 1868, which gets rid of the old rule as to the dissolution of Parliament on the demise of the Crown. I observe that you only refer to the Act of Anne. Probably we shall have an awkward question some day as to the effect of demise of the Crown upon our Legislative bodies.

I remain, &c.

W. E. HEARN.

Returning to the proceedings of the new Parliament, an effort was made to obtain a new government without having recourse to me, though I had been marked out by the course of events as the proper person, as the failure of the member selected will show. Mr. William Forster was entrusted with the task by His Excellency the Administrator (Sir Alfred Stephen), but after endeavours extending over several days, he returned his commission. I was then sent for on May 9, and on the 14th the formation of the new Ministry was announced to Parliament. This, the first ministry formed by me, existed until February 8, 1875.

Sir Hercules Robinson arrived on Sunday, June 2, and assumed the office of Governor on the following day. Though his appointments hitherto had been confined to Crown colonies, Sir Hercules Robinson was well acquainted with the principles and the working of Parliamentary government, having obviously acquired his knowledge from a close study of the English Constitution in all its later developments. He was a man of much personal dignity, who walked and rode like a king; though capable of stern action, he was gracious


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and kindly in his bearing; his mind was singularly acute in argumentative examination; and his methods of enquiry were lucid and searching. As he was passionately addicted to sport, evinced on all fitting occasions a high public spirit, and carried about with him an air of superiority, it is not surprising that the new Governor became popular with all classes. It was my happy fortune to be on the most friendly relations with His Excellency during the whole period of his administration. I was in office when he arrived, and I was in office when he left the colony, nearly seven years afterwards. In his high place he was an able man, fond of work and not afraid of conflict.

This Ministry had to encounter strong opposition in Parliament. Sir James Martin and Sir John Robertson sat directly in front of us, with several able men beside and behind them, but the popular feeling very generally was with us. There was a wide field of work to exhaust our energies. One or two bold steps were taken in recasting the departmental machinery of government. Hitherto, in imitation of the English law appointments, we had clumsily yoked in the weak Ministerial team (at this time confined to seven offices) an Attorney-General and a Solicitor-General, without reference either to the non-cabinet standing of those officials in England or to the vast difference in the population and circumstances of the two countries. The office of Solicitor-General was abolished, and a large administrative department, presided over by a Minister of Justice, was created in its place. With the exception of the lawyers, I believe all classes approved


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of the change. To this Minister, who may be a layman, is assigned the administration of the prisons, the courts of justice, and minor divisions of the public service in close relation to the execution of the laws. The Attorney-General remains, though a member of the Executive Council, for the most part limited to his duties as legal adviser of the Crown, and as public prosecutor. A Department of Mines, presided over by a Minister, was created by Act of Parliament, and foreseeing what must soon come, tentative steps were adopted towards bringing into existence a Department of Public Instruction.

In the last preceding administration a spirit of quasi-militarism had been suffered to display itself in somewhat extravagant forms. I had myself at all times been in favour of fostering the sentiment among the permanent residents, especially the young men born of the soil, of military enrolment for the defence of the country. The Ministry proposed, and Parliament assented to, a reduction of the permanent force lately enlisted, with a view to giving encouragement to the Volunteer principle.

In one thing I hope I may lay claim to the approval of friends and opponents alike—in the efforts. I have uniformly made to fill the highest offices of the State by the best men. In filling the office of Chief Justice in 1873, Sir James Martin, after much consideration, was finally selected, in disregard of all other considerations except his legal attainments and standing at the Bar. I was never forgiven in some quarters for that appointment, but it met with the general approval of


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the public and of the profession. Sir James was respected as a great judge. Time after time, in the appointment of other judges of the Supreme Court, the like considerations alone have been allowed to have weight. The same may, I think, be said (and has been indeed often said) of other important appointments, where example in official conduct not less than personal competency or merit in past service, is of the utmost value to the public. In July 1873 it devolved upon Ministers to recommend the high appointment of President of the Legislative Council. I selected Sir John Hay (who for the next eighteen years so worthily filled the chair), and my colleagues all concurred in the selection, which, on submission to the Governor, received His Excellency's warm approval.note The following correspondence is now published in vindication of the correctness of the views of all parties to that appointment, and as serving to illustrate the considerations which I can safely say have at all times influenced me in performing this class of a Minister's duties.

Rose Bay, July 18, 1873.

Dear Mr. Parkes,—As Colonial Secretary you have already received my acknowledgment of the honour conferred upon me by my appointment as President; but I feel that something more is due from me on the occasion.

When I waited on His Excellency, at his request, on Friday last, he informed me that on the matter being first mooted he and you had been quite agreed in the opinion that the office should be tendered to me in the first instance, and in desiring that I would accept it. I had then the opportunity of thanking


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Sir H. Robinson personally, and I trust that you will now accept my assurance that I am very much gratified by the compliment itself, and still more by the manner in which it has been paid to me. Its value is greatly enhanced by the fact that you must have acted on the principle that an appointment of which the honour is more to be considered than the emolument should be the result not of canvass but of selection.

I have also learned that the members of the Executive Council were unanimous in their approval, and I hope you will do me the favour of conveying to your colleagues individually my thanks for this expression of their good opinion.

I remain, yours truly,

JOHN HAY.

Sydney, July 14, 1873.

My dear Mr. Hay,—I thank you for your note of the 10th, which is very gratifying to me, as affording a further proof, if such were wanted, that the high appointment conferred upon you will secure to the country an appreciative discharge of duties attached to it.

If I have one wish more fervent than another in the great position I am permitted to occupy, it is that, whenever I am called upon to retire from it, I shall not be justly open to the reproach of having done anything to lower the tone of our public life or to debase the character of our young institutions. It was in this spirit that, after the fullest consideration, you were thought of as President of the Legislative Council.

I cannot pay you a higher compliment than by frankly assuring you that you were appointed because I and my colleagues considered that in view of what was due to the Legislative Council itself, and what was equally due to the meritorious and dignified course pursued by you in both Houses of Parliament, it was the best appointment that we could make—the one most calculated to raise the Council in public respect, and to encourage others to a praiseworthy course of conduct by the recognition of a worthy example.

It is gratifying to us that His Excellency the Governor


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cordially concurred in these views. Accept my sincere congratulations upon your assumption of your new duties.

Faithfully yours,

HENRY PARKES.

Among the measures of legislation submitted by the Government was the Electoral Bill of 1873, which recast many of the electorates, where by the increase of population great inequalities had grown up, and extended the number of members of the Legislative Assembly, and carried out other much-needed changes to improve the representation of the people. The Bill was read the second time in the Assembly by thirty-four to five votes, and, after lengthy consideration in committee, read the third time by twenty-nine to thirteen, and duly sent to the Legislative Council. That body read the Bill the second time by ten to three, but so materially altered its provisions in committee, imposing additional charges on the people, that when it was returned to the Assembly it had to be laid aside on the ruling of the Speaker. It is worth while to note the course pursued by the nominee Council in dealing with this Bill, which was confined to reforming the representation of the people in the Assembly, and to place in contrast with it the course of treatment dealt out by the same body in the same year to a Bill sent up by the Assembly to reform its own constitution. ‘A Bill to amend the Constitution Act and to provide for the representation of the people in the Legislative Council,’—in plain English, to abolish the nominee principle and make the Upper Chamber elective— was introduced by me in the Assembly early in 1873.


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It was read the second time on February 27 by a majority of thirty-three to twelve; it passed through its further stages, and was sent to the Council, when that House, in a spirit of insolence which could only be generated by the vicious principle of nomineeism, refused to receive it on the following resolution:—

That this Council declines to take into consideration any Bill repealing those sections of the Constitution Act which provide for the Constitution of the Legislative Council, unless such Bill shall be originated in this Chamber.

If the hereditary principle in the House of Lords is fundamentally objectionable on theoretical and equitable grounds, the principle of nomination in Colonial Councils is ten times more objectionable on grounds of common sense and simple justice between man and man. The sense of security for the natural term of life, and the absence of all accountability to any power or authority whatever, act upon the half-educated and vulgar minds found in all these Colonial Councils with a stupefying force quite pestilential to their own moral nature, and often very hurtful to the public interests. Even upon the better class of minds the effect is visibly pernicious; and it grows upon the victims stealthily, without their being conscious of the gradual change from manliness to superciliousness, from natural self-respect to upstartism. I only just touch upon the evil in this place, as it will be my duty to speak at some length in another chapter on this radical defect in the Constitution of New South Wales.

Owing to fortuitous circumstances, the question of


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electoral reform was put off from time to time—chiefly through changes of Ministries developing nothing but feebleness. But it fell to my lot eventually to legislate on the subject, and my Bill of 1873, with some modifications, though passed long afterwards, is now the law.

For my part I seized the first opportunity to render it legally impossible for any reckless or self-serving Minister of the future to profit by Sir James Martin's example. In the new Electoral Act I inserted the following clause: ‘The day to be fixed for the meeting of Parliament after the return of the writs for General Elections shall not be later than the seventh clear day after the date on which such writs shall have been made returnable.’Such is the present law, and I do not think it is likely to be repealed.

I have dwelt at some length on this disagreeable episode in our political history on account of its exceptional importance in working out the law of the Constitution.

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