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12. CHAPTER XII

TITULAR FORMS—THE EXECUTIVE COUNCIL—VIEWS OF SIR ARTHUR HELPS—ETIQUETTE AND PUERILITY IN PARLIAMENT—ANOMALIES IN MINISTERIAL ARRANGEMENTS—CONSTITUTIONAL PROCEDURE IN CHANGES OF MINISTRY—THE CROWN AND MINISTERS—GENERAL RESULTS OF PARLIAMENTARY GOVERNMENT—POLITICAL PARTIES—CORRESPONDENCE WITH EARL GREY ON THE RECONSTRUCTION OF THE LEGISLATIVE COUNCIL AND THE QUESTION OF FREE TRADE —BORDER CUSTOMS—POSTAL AND TELEGRAPHIC SERVICES—THE CASE OF THE PRISONER GARDINER—DEFEAT OF THE MINISTRY

AMONG the many differences of procedure and custom in carrying out Responsible Government in the colonies may be mentioned the course adopted in regard to individual Ministers on a change of Government. In 1856 it was decided in England that persons sworn of the Executive Council in one of the colonies should be designated ‘The Honourable’while they remained members of that body. For some years in New South Wales the practice was that when a Ministry resigned as a body the Ministers individually resigned their seats in the Council. But in the adjoining colony of Victoria the retiring Ministers have never resigned their seats in the Executive Council, and there exists there a body of Executive Councillors not holding office. I believe the practice is similar in other of the colonies. This anomaly in practice led me to submit the matter


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to Sir Arthur Helps, the late accomplished Clerk of the Privy Council, and I give here the interesting letter which I received in reply. Though the letter is marked ‘confidential,’I cannot conceive of any reason why it should be longer withheld from the public, after the lapse of nineteen years and the death of most of the persons named in it, and especially considering the value it must possess for Australian statesmen.

[Private and Confidential]

Kew, Surrey,

August 21, 1873.

Sir,—I have received your letter of June 11.

As I know but little of the state of Colonial Government, or of Colonial Society, it is with real diffidence that I venture to give any opinion upon the points submitted for my consideration.

It would be churlish, however, to refuse to give any answer to a letter so kindly worded as yours. I therefore attempt to make some reply, and I can assure you that I have given as much thought as I could to the questions which you have proposed to me.

I must premise that the answer seems to me to depend mainly upon the nature of your Executive Council, as to whether it has most resemblance to our Cabinet or to our Privy Council.

It appears to me, from your account of it, that it most resembles our Cabinet, except that it is presided over by your Governor, as the representative of the Sovereign. Moreover, the small number of its members, and the fact that almost every person in it holds some office, makes it still more resemble that Committee of the Privy Council in Great Britain, which we call a ‘Cabinet,’but which has, properly, no official designation and no official existence.

Such being the case, that your Executive Council resembles our Cabinet, I am decidedly of opinion that in the absence of the Governor, the Prime Minister should act as President of the Executive Council. With regard to your second question, I am again influenced by the fact (as I assume it to be) of the resemblance


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of your Executive Council to a Cabinet rather than to a Privy Council, and I doubt whether it would be judicious to arrange that members of the Executive Council on retiring from their political offices, should retain their seats as Executive Councillors. This question appears to me to be a much more difficult one than the first, and to depend upon circumstances respecting which I have very little knowledge. I mean, for instance, the habits of political thought and conduct which prevail in the colony.

Here, at home, the system of retaining as Privy Councillors those persons who have once held such office as makes them eligible has acted admirably. Those Privy Councillors who are not in immediate connection with the Administration of the day, never, by any chance, seek to interfere with that Administration. They, however, are often very useful—most useful—members of the Privy Council. The Ministry of the day can call upon them, and often does call upon them, to sit upon Committees of Council which are called together to decide upon questions which are not, or ought not to be, of a party character. And, moreover, the Ministry of the day can summon to its aid members of the Privy Council who have special knowledge upon some particular subject.

For instance, the late Lord Kingsdown and the late Dr. Lushington were great authorities on any matters relating to international law. Whatever Government was in, these eminent men were summoned to a Council whenever such matters were at issue. To show you how men of different politics have sat at these Councils, I may mention that I have served as Clerk of a Committee of Council consisting of the Lord Chancellor (Lord Campbell), Sir James Graham, the Lord President (Lord Granville), Sir Edward Ryan, Lord Justice Knight Bruce, Mr. Walpole, the Chancellor of the Exchequer (Mr. Gladstone), and Mr. Lowe, Her Majesty's Attorney-General and Solicitor-General as Assessors to the Committee, and the Lord-Advocate for Scotland. Now the question arises in my mind whether (and this I say confidentially to you) political feeling and political action are with you in the same


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comparatively placid state as with us—whether, if you were to make your ex-Executive Councillors continue to be Councillors, you could reasonably conclude that they would never endeavour to embarrass the Government of the day, and would be ready to be called upon, as our Privy Councillors are, to assist the Government in any matter relating to party. If I felt sure of that, I should say, notwithstanding the resemblance of your Executive Council to a Cabinet, and notwithstanding the smallness of its numbers (for that latter drawback would soon be removed), by all means let the Executive Councillors, when they are out of office, retain their seats on the Executive Council.

I am sorry that my reply to your second question should not be of a decisive kind; but I think you will admit that in the absence of full knowledge upon the important points I have raised, it would be presumptuous in me to give a decisive opinion.

I have the honour to be, Sir,

Your obedient servant,

ARTHUR HELPS.

The Honourable Henry Parkes,

Colonial Secretary's Office, Sydney.

It was decided by the Imperial authorities that a person holding office as Prime Minister, and of course being a member of the Executive Council for one year, and others standing in the same relation to the State for three years, should be permitted to retain the title of ‘Honourable’on making personal application for such distinction after retiring from office. But during the thirty-six years of Parliamentary government there have not been more than five or six applicants in New South Wales for this distinction, and these, with one exception, have not been among the leading men who have held office. Of late years retiring Ministers do not appear to have resigned their seats in the Council, and I suppose the rule may be considered as obsolete.




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Perhaps we ought not to look for the same delicate appreciation of political relations in a colonial leader as is found in men of high education and long experience in the Imperial Parliament. At all events, in our actual Parliamentary life, we have some droll instances of political etiquette and decorum; such, for example, as a member rushing in from a caucus meeting and announcing to the House that he had just been elected ‘Leader of the Opposition,’and from day to day speaking of himself as such ‘leader’or as ‘Leader of the party behind him,’or on occasion addressing the Chair about his ‘followers.’Of course we all know how leadership has grown, and how it has asserted itself, in the annals of the House of Commons. History has told us with apt illustration, with what watchful restraint, what careful examination of its traditions, what clear insight into the springs of inner life, and what consummate patience, Peel at one time, and Gladstone at another, rose to the leadership of the House of Commons. Neither ever went through the process of election. The title of both was admitted almost as a matter of course by general expectation and acceptance. So I suppose it will be in Australia as time goes on. Another amusing weakness among members is the free use of the term ‘my honourable friend.’I have heard one loquacious member, in replying to the speech of another member, apply to him the words ‘my honourable friend’twenty times in fifteen minutes, and the two gentlemen were known to be anything but friends after all. A practice is permitted—and is almost grown into a habit with some—of members walking about the


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Chamber, exchanging a word with one here and with another there, then settling down into a seat for a few minutes, and then repeating the exercise. An anecdote is told of William Cobbett, that he persistently took the seat on the Treasury bench which was usually occupied by Sir Robert Peel, then Prime Minister, and that he defended his conduct by reasoning that he was as much entitled to the seat as any other member. Cobbett was, however, laughed and chaffed out of his vagary, and no other member cared to imitate him. In the Assembly of New South Wales a dozen members in an evening's sitting may be seen competing for the Treasury seats during the temporary absence of Ministers. These may possibly seem small matters, but they largely tend to impair the dignity of a deliberative assembly, and they would not be tolerated in a church nor in a public meeting. Like the proverbial continuous dropping of the rain-drops, these things, persisted in day by day, probably have a more abiding effect in vitiating the character of the House than would be produced by occasional outbreaks of worse conduct arising from over-heated passion or strong provocation.

In the conduct of administration the Australians have also brought into existence some anomalies which would perplex the lover of strict constitutional consistency in form and usage. While the Government of England has been steadily settling through the latest generations into something like a recognised harmonious organisation, a Colonial Government during its one generation of existence has often spasmodically drifted


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into the most incongruous forms of departmental action. I have pointed out in an early chapter with what a dead weight of official lawyers the Government of New South Wales was launched into existence by Mr. Wentworth's Constitution. At the present time (1892), in three of the colonies, the Attorney-General, instead of confining himself to his legitimate sphere as law officer of the Crown, is acknowledged as the political chief of the Administration, while two of the actual Premiers are wandering about in distant parts of the world.

Arising out of these loose notions of ministerial connection and relevancy we have the self-contradictory term of ‘Acting Premier’lightly bandied about, and quietly repeated day after day by pretentious newspapers, as if there ever was in the Government of England an acting Prime Minister, or as if the thing were conceivable. Under the British Constitution (and that is what we all claim to possess in Australia) the Crown, either directly or by deputation, as in the colonies, commissions the person who is deemed to be best fitted, by political standing, knowledge of affairs, general capacity, weight of public character, and the degree in which he commands confidence, to form an Administration. No stipulation is made as to who are to be his associates. He receives his commission direct from the Crown or from the Crown's representative, as the sole responsible former of the Ministry. He consults no one, and ought not to consult anyone—because no secret or irresponsible advice or assistance ought to come into play—in selecting his colleages. He is nominated by the Crown itself; they are nominated by


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him for the Crown's approval. He thus becomes First Minister, not by any empty ceremony or rule, nor as a matter of form, but by the acceptance and creative exercise of primal authority. In this first exercise of authority he is directly responsible to Parliament, and his wisdom will be found in his ability to justify his conduct. Henceforward, at every step of the Administration over which he presides he is responsible for the whole of its conduct. How, then, can there be an Acting Prime Minister? and how can the person who has accepted that great position delegate to another his indefinable powers which often take form and are called into activity by unanticipated and unforeseen emergencies? In England no men of the rank of Cabinet Ministers would consent to serve under one of themselves nominated by their accepted chief as ‘Acting Premier’; but then no man could be found to propose any such arrangement.

Some time ago I had occasion to write to a distinguished person on the relations between the Crown and Ministers, more especially in respect to the acceptance of any office of profit, and I then expressed my views in the following propositions:

  • 1. That the Prime Minister, the constructor and leader of the Ministry, cannot resign without his resignation including the whole Ministry [of course the Crown on its own judgment can send for any eligible person among the late Ministers to reconstruct].
  • 2. That on tender of resignation the function of


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    Adviser ceases and only such opinion may be offered on any subject as is invited.
  • 3. That in the case of any Minister, most of all in that of the Chief, the moment the intention is entertained to accept employment under Government, ineligibility for the performance of the executive and administrative duties of Government has begun, and resignation should at once follow.
  • 4. That no Minister can be a party to appointing himself to a permanent civil office without his conduct being justly regarded as derogatory to the character and honour of Government.
  • 5. That in the case of a contemplated reconstruction of Government, no person can be designated for that duty by the retiring Minister, except on the invitation of the Representative of the Crown.

Parliamentary government in Australia has proved itself upon the whole a remarkable success; but this is not saying that it has been free from serious mistakes and some lamentable blots. Any contrast, though made from imperfect data, between the Australia of 1855 and the Australia of 1892 would convincingly show the vast progress which has marked the Parliamentary interval of thirty-seven years. Making all fair allowance for the beneficial working of those moral and commercial agencies which would have come into increasingly active operation under any form of political institutions, still the results which are directly attributable to the legislative and administrative discernment, wisdom, and


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vigour of the new Constitution are immense. They are to be seen in the extension of railways and the greatly improved means of communication in all directions, in the scores upon scores of substantial bridges which span rivers and creeks where dangerous crossings served the purposes of travel in the last generation, in the wider spread of settlement and the better class of rural homesteads, in the gradual sweep of cultivation over the wild land, in the beauty-spots of orchard and flower garden round poor men's homes; above all, in the beneficent provision, reaching everywhere, for the instruction of the happy children, in the popular demand for municipal institutions, in the multiplication of books accessible to the many, in the more systematic ordering of towns and villages, in the higher efficiency introduced into the departments of justice and police—in a word, in every feature of society. Yet there is an unreasoning desire to push on, a rude impatience of all restraint, which attacks any difficulty or delay in Parliament as in all other provinces of colonial life. If an inconvenient precedent is cited which the Chair decides is a bar to further progress in that direction or at that time, it is forthwith pronounced a musty relic of a barbarous age —a cobweb to be swept away. A like feeling arrays itself against forms of procedure which are the embodiment of the wisdom of generations. And occasionally when anything goes wrong the constitution of the Legislature is to be forthwith amended to provide a remedy. Party action in Parliament is to give way to perfect harmony, where the best men on all sides are to unite in doing the best work.




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There is not much difference in the Constitutions of the several Australian colonies, and all of them are imperfect instruments. But each of these Constitutions is sufficiently definitive, and at the same time sufficiently elastic, to admit of a sound and healthy system of free government. The constitution of a free people depends, as eminently in the case of the Constitution of the United States, upon the wisdom, the loyal attachment, the liberal interpretation, and the just conceptions of the men who work it. The evils of Party government, of which we hear much in the colonies as elsewhere, may be admitted, and they cannot be denied; but then every good thing is susceptible of abuse. What the people of Australia have to do is to follow faithfully in the footsteps of the founders of Parliamentary government, to scrupulously guard the ballot-box from corruption, and to reason out all questions of public policy by opposing sides acting from clear and honest beliefs. The greatest questions in relation to the public welfare admit of no compromise, nor yet of settlement or accommodation, except by the voice of the majority. What ground for agreement or accommodation can be discovered between freedom of commercial intercourse and restriction of commercial intercourse, or between denominational and non-sectarian education? If it be impossible to reconcile opposing principles, how otherwise, if not by conflict of thought and argument, and the final preponderance of votes, is the question to be determined? It is not Party in any true sense, but Party so-called, brought together by other means than attachment to and promulgation of openly avowed principles,


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which works the mischief at the ballot-box or in the Parliamentary arena. Australian patriotism should set aloft as its noblest aims in all its struggles, purity, honest conviction, and unbending courage. Instead of the abolition of Party, we want an intelligent and a conscientious adherence to Party lines, the strongest cast of which is quite consistent with personal respect and courtesy in political intercourse.

One of the measures of this—my first Administration—was a Bill to repeal the ad valorem Customs duties which had been imposed by the previous Government. The Treasurer, Mr. George Alfred Lloyd, conducted the Bill through the Assembly and dealt with the policy of Free Trade, as proposed by the measure, with much ability and intelligence. In this course of legislation we had the warm sympathy of Sir Hercules Robinson, who, we found, was a strong free-trader from economic enquiry and conviction. On the subject of our fiscal policy and on the important question of introducing the elective principle in the constitution of the Upper Chamber, I had a lengthy correspondence with Earl Grey, two of whose letters I introduce here, on account of the permanent interest which must attach to his Lordship's opinions:—

Howick, Lesbury, Northumberland,

February 4, 1874.

Sir,—I have to thank you for your letter of December 1, which reached me a few days ago, and also for that of November 3, which I received a month earlier. I sincerely congratulate you upon having been able to accomplish a very important reform in the financial and commercial policy of New South Wales, and I feel no doubt that its good effect on the industry


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and trade of the colony will soon be apparent. I hope that this result of your measures may before long lead the other Australian colonies to follow your good example, and abandon the unwise policy of protection.

But though the new tariff of New South Wales is a great improvement on the old one, and as great an advance towards the adoption of a sound system as could reasonably be looked for at once, it would be a mistake to regard it as giving full effect to the principle of Free Trade. If I am not mistaken, the new tariff provides for the imposition of duties upon various articles which are also produced in the colony and come into its market without being subject to similar taxation. Now, in all these cases, the true principle of Free Trade is departed from, since an artificial stimulus is given to the home production of all articles which the home producer is allowed to sell without paying the duties charged upon them when imported, and the consumers are taxed to give this stimulus without benefit to the revenue. For this reason, since the adoption of the policy of Free Trade, it has been a rule, strictly observed in this country, to allow no article, subject to a duty when imported from abroad, to be raised at home for sale, unless it pays a similar duty. Thus, as you are aware, the growth of tobacco in the United Kingdom is prohibited, except in very small quantities, for the use of the grower, and beet-root sugar made here pays the same duty as imported sugar. In so far as it is at variance with this rule, the new tariff of New South Wales departs from the principles of Free Trade, and to the same extent must tend to impoverish the colony, or at least to check its advance in wealth by diverting labour and capital from their natural, and therefore most productive employments, into others of which the profit depends on the artificial encouragement they receive.

I may take this opportunity of apologising for not having answered your letter of August 8, which I received in October. I did not do so because I had little to add in reply to it to what I had already written in my former letter, if I remember it correctly. In most of what you say against a nominated Upper Chamber I concur, but the question is whether there are not


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objections scarcely less strong against any form of an elected Upper Chamber which has yet been suggested, whether it is advisable to have any such Chamber at all, and whether, instead of attempting to alter the constitution of the Council, it would not be wiser to abolish it altogether, making at the same time some improvements in the constitution of the Assembly? I do not find any reasons urged in your letter against the conclusion I came to on this question, except that any such change as I suggested would be impracticable. No doubt it would be so in the present state of opinion in Australia, but have the reasons for the view I have taken of the subject ever been brought under the consideration of the colonial public? If not, I should have been glad if you had submitted them to the judgment of the people of New South Wales, by publishing my letter to you, or extracts from it, in the newspapers.

As you say you had not been able to find a copy of my essay on Parliamentary Government in the colony, I presume it is not in the library of the Legislature. I have not a spare copy by me, or I would have sent it to you to be placed there. Perhaps when I am in London I may find one and do so.

I am, faithfully yours,

GREY.

The Honourable H. Parkes.

Sydney, April 10, 1874.

My Lord,—I am duly in receipt of your letter of February 4. Your remarks respecting the tariff of this colony as left by the legislation of the present Administration are perfectly just; but we have not imposed any of the existing taxes—our efforts have been confined to the work of remission, stopping short of remitting all. It is probable that the tariff will be reduced to a purely Free Trade basis at an early date.

I am deeply sensible of the value of your views on the Legislative Council question, or rather on the question of the best form of legislature for the colonies, and I feel much indebted to you for the trouble you have taken in explaining those views to me. I understand your present letter as authorising me to


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publish your letter of May 27 last year, either whole or in part. Without this distinct intimation from yourself, I should not have considered myself at liberty to give publicity to your arguments and opinions. I shall now take occasion to place your letters, so far as they relate to this subject, before the public of this colony.

I send by present mail public documents on the question:

1. Report of the Legislative Council on the Legislative Council Bill.

2. Minutes of the Proceedings of the Legislative Council, Nos. 40 to 43.

As I informed you in my letter of August 8, 1873, would probably be the case, the Bill of the present Ministry was introduced in the Council this Session, having been passed in the Assembly by large majorities during last Session. An amendment was made on the motion to read the Bill the second time, to the effect that it be referred for the consideration of a Select Committee. This amendment was carried, and the report and evidence now sent form the result. By reference to pages 144 and 145 of Minutes of Proceedings, you will see the ultimate decision of the Council after the committee had reported, which was in favour of the nominations being removed from the influence of the responsible Ministers, and of a maximum limit to the nomination of members. I need not point out that these recommendations, if carried into effect, would make the Council independent of even the indirect force of public opinion and place it in direct hostility to the representative principle. A Colonial Upper Chamber, appointed in this arbitrary manner, without reference to the responsible advisers of the Crown, and to which, after a defined limit, no further nominations could be made, would be, as compared with the House of Lords, a legislative oligarchy, while it would necessarily be composed of incomparably inferior persons as to legislative fitness. This, then, is the state in which the Council itself has left the question to be put before the constituencies at the approaching General Election.

After the further consideration which I have been able to


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bestow upon the subject, I cannot modify my views in favour of two Houses. A colony like New South Wales cannot possess a class of statesmen or political thinkers who have been born and nurtured amidst the best political influences, and who pass through life in constant communication with men of culture and elevated station. But, as compared with that of an old nation, the population of a colony contains a much larger proportion of enterprising, spirited, and self-reliant men. The mere fact of removal from one side of the world to the other may be accepted as implying some decision of character, and when that step is taken as the result of acquired information and with a definite purpose of self-advancement by industrious effort, it affords, I think, evidence of no small amount of practical intelligence. Such, to a large extent, is the character of the immigrant part of the population. In New South Wales we have now much of the stability of long-settled family life, and a numerous body of native-born men and women, very many of whom have been reared in circumstances of comfort, fairly educated, and accustomed to think and act for themselves with a keen sense of their personal freedom and independence. In the present Assembly there are at least thirty out of the seventy-two members who are native Australians. Then, there is a much larger proportion of the population here than in England who are possessors of property and leisure.

I have said thus much generally on behalf of the raw material in the colony for legislative purposes. It may be rougher, but it is not less sound, I hope, than that of the mother-country, and it is, comparatively speaking, more plentiful. Your Lordship's strongest argument against a Second Chamber is, I think, that it is likely to absorb the better men, and by doing so impoverish the Assembly. But will that really be the case? Will it not be the case here, as it is elsewhere, that men of capacity who have for years taken part in the heated conflicts of the Assembly, will still find a sphere of usefulness by removing to the calmer atmosphere and the less severe labours of the Council, who otherwise would retire with their trained talent and refined experience into private life? And as time advances will


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not this class of public men more and more increase? Even in our short trial of Parliamentary government, several of the more valuable members of the Council have been men of this stamp, removed from, but who in any case would not probably have remained members of, the Assembly. If it is admitted, as is admitted by your arguments and suggestions, that there must be some check upon legislative action—some counterpoise to the impulsive exercise of legislative power—it still appears to me that the machinery of Government will work more smoothly and successfully by having this controlling force lodged in a Second Chamber rather than in a second class of legislators in a single Chamber. A single Legislative Chamber, composed of different classes of members, would be distracted by inherent antagonisms peculiar to its formation, and the work of its hands would, I fear, be often more perverse and ill-considered than would be that of a single Chamber on a level elective basis.

The radical misconception in the efforts to construct a Second Chamber in the colonies has, it seems to me, been in the supposition that we could create any kind of Chamber like the British House of Lords. That is simply impossible, and the idea must be given up before a healthy conception of the work can be formed. The title to legislative authority in a country like this must be derived from the people themselves, and the only principle by which strength can be given and confidence secured is that of election. If the choice lies between the laws being made by a single voice and the making of them being only possible by two distinct voices, I cannot resist the conclusion that it is wiser and safer to accept the two. The problem to be solved appears to me to consist in giving to both voices an equal authority, and yet imparting to one a tone as free as possible from caprice and passion.

It is with a sincere feeling of respect for your Lordship's character that I venture thus imperfectly to express my inability to concur in your views in favour of a single Chamber.

I have the honour to be, my Lord,

Your most obedient servant,

HENRY PARKES.

The Right Honourable the Earl Grey.




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13 Carlton House Terrace,

May 4, 1874.

Sir,—On hearing from you some months ago that you had not been able to obtain in New South Wales a copy of my essay on Parliamentary Government, I informed you that if on my arrival in London I found that I had one to spare I would send it to you. Accordingly I beg now to forward to you the accompanying volume, and I have to request that when you have looked at it (if you can find time to do so) you will be good enough to present it in my name to the library of the Legislature. Though it is ten years since this essay was published, and great changes have in that time taken place in the colonies, I venture to think that it contains some observations which may still be found not altogether unworthy of your attention, and of that of the members of the Legislature, with reference to the question as to the expediency of altering the constitution of the Legislative Council which has led to so much debate in the colony, and which as I understand still remains unsettled.

This question is one of great importance, and it seems to have been discussed with much ability both by the advocates and the opponents of the proposed change; but as an impartial observer from a distance I must doubt whether either party has sufficiently considered the objections to the arrangement for which it contends, and whether in the heat of the controversy both have not fallen into serious errors.—So far as regards the reasons which have been urged against allowing the present nominee Council to continue, I must express my concurrence with the supporters of the rejected Bill; but I am not equally satisfied that to make the Council an elective body in the manner proposed would be likely to ensure such a judicious exercise of the power of legislation as is required for the welfare of the colony. The elective Council, I fear, would either be without power enough to exercise any substantial power over legislation, or else it would be liable to bring the whole machine of government to a standstill by differences with the Assembly. All experience shows that differences would be likely to arise


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between the two branches of the Legislature, and I do not perceive that under the plan proposed there would have been any sufficient provision for averting the difficulties which would thus be occasioned. The creation of an elective Council would also either have the effect of weakening the Assembly by withdrawing from it able and useful members, or else must fail to obtain the authority and command of the public respect which it could only derive from being composed of men of high character and capacity. It is not reasonable to suppose that out of its present limited population, New South Wales could command the services of enough men of this stamp to form two really efficient legislative bodies, sufficiently numerous for the due performance of their functions. For it must be borne in mind that it is of great importance for the efficiency of a legislative body that it should be tolerably numerous. This is more particularly true where the system of ‘responsible,’or in other words of party government, has been adopted, since under this system of government the popular branch of the Legislature is so powerful that if it consists of only a small number of members, individual votes become of so much value as to give a great temptation to abuse.

These considerations have led me to the conclusion that instead of attempting to improve the Legislative Council by rendering it elective, it would be advisable to abolish it. I am aware that this conclusion is quite opposed to the generally received opinion that the division of a Legislature into two houses is indispensable in order to check hasty and injudicious legislation. Whether this commonly received opinion is correct, even as regards large nations, may admit of some doubt, nor would it be easy to show that in any country where no Upper House has been found existing and deriving authority from long prescription, the problem of creating such a body, and getting it to work well with the popular branch of the Legislature, has been satisfactorily solved. But passing by this question, it is sufficient to observe that in young communities like the British colonies, experience appears to me to be clearly unfavourable to the division of the Legislature into two distinct bodies. At


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the same time I am not prepared to deny that mistakes very injurious to the colony would probably be committed by the Legislative Assembly of New South Wales as now constituted, if no provision were made to secure greater deliberation and judgment in the work of legislation than could be looked for were the Council to be simply abolished. I fully recognise the necessity for imposing some check upon the hasty and unwise measures a purely democratic body like the Assembly might adopt, but I believe that this check might be much more usefully applied within than without its walls.

In the volume I now send you, I have expressed my opinion that in this respect the constitution given to New South Wales in 1842, under which the Legislature consisted of a single chamber, one third of the members being nominees, was better than that which was substituted for it a few years later. I adhere to that opinion, and I still believe, for the reasons fully explained in my essay, that the change which was made was a mistake, and that the system of responsible government would have worked far better in New South Wales if the old constitution of the Legislature had been retained. To restore it, however, would be impossible, and I only refer to it in order to point out that it deserves to be considered whether the principle on which it was founded might not be adopted to the extent of dispensing with any second branch of the Legislature, and of introducing into the Assembly a limited number of members who should not owe their seats to popular election, without being as formerly nominees. What I would venture to suggest is that in abolishing the Council, a limited number of seats in the Assembly (say eight or ten) should be given to members chosen by the Assembly itself, and holding their seats for life, or till they resigned them. The first life members might be named in the Act for altering the constitution, and it might be provided that vacancies should be filled up only when not less than three had occurred, when the Assembly should elect by cumulative vote the persons to succeed to them.

By this arrangement we might fairly expect that the ablest and most experienced men of different political parties would


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obtain seats in the Assembly, and that holding these seats for life they would be able to act with independence on their own judgment. The advice of such men would be of the highest value to the Assembly in determining the questions that come before it, and a useful check on rash legislation. You will find that in the essay I have sent you I have contended that the want of such an element as would thus be supplied in the composition of the Assembly, has been greatly felt in the House of Commons since the passing of the Reform Act of 1832. Before that Act was passed, the rotten boroughs (as they were called) practically provided, though in a faulty manner, for securing the presence in the House of Commons, in an independent position, of the most eminent men of all parties. Since the passing of the first Reform Act, the loss of this advantage has been very seriously felt, and it is likely to be still more so in the time to come, in consequence of the new Reform Act of 1867. This fact strongly supports my opinion that the introduction of a few life members, appointed in the manner I have described, would be an important improvement in the composition of the Assembly of New South Wales. It would also, I am convinced, prove a far more effective security against rash legislation by a purely democratic Assembly, than could be afforded by the creation of any Council that could be devised, whether on the principle of election or of nomination. Any such Council could only stop unwise measures on the part of the Assembly at the risk of bringing both legislation and the whole machine of Government to a stand. But by introducing within the Assembly itself a limited number of able and independent men, their restraining influence upon the members representing the popular feeling of the moment would act with far more effect, and all risk of the extreme inconvenience arising from differences between two independent houses would be averted. I am persuaded that the passing of such a measure as I have now suggested would afford the best and safest mode of terminating the controversy as to the Legislative Council, which has been raised in the colony, and I would add that the passing of such a measure might be rendered easier by providing that the present members of the


  ― 325 ―
Council should be the first life-members of the Assembly. Probably this would bring into that body more life members than would be desirable, but this need not be more than a temporary inconvenience, as it might be provided that no new life members should be chosen till they had fallen below any smaller number which might be fixed upon as that to be permanently maintained. Even the inconvenience of a temporary excess in the number of life members might be avoided, if those who have now seats in the Council should be able to agree among themselves as to which of them should forego the privilege of being brought into the Assembly.

I have only, in conclusion, to apologise for the length of this letter, which I have been led to write by the deep interest I feel in the welfare of the thriving colony of New South Wales.

I have the honour to be, Sir,

Your obedient Servant,

GREY.

The Honourable H. Parkes.

About this time I first communicated with Mr. Gladstone. I had been an admirer of that statesman for many years, and I was beginning to think in a new light of the relations between the colonies and the parent country, and of the bonds which might eventually be devised to unite all the Australian colonies under one federal constitution. The subject, which I submitted in general terms to Mr. Gladstone, may be gathered from the following extract from my letter: ‘Any new national importance that could be given to these young States would tend to bind them more firmly to Great Britain, and would tend more and more to develope their resources by inducing men who have made fortunes to remain permanently amongst us. A Federal Government, including uniformity in Customs


  ― 326 ―
laws, would come more speedily from a higher political status. I should feel deeply indebted to you if you could examine the question which I have merely suggested.’

Hawarden Castle, Chester,

July 30, 1874.

Dear Sir,—I beg to acknowledge your interesting letter of June 5, and to express the pleasure with which I learn that, while we are locally separated by so vast a distance, we are nevertheless united by sympathy as attached subjects of the British Crown.

The subject which you mention to me is very large and comprehensive. It is also one by no means new to my thoughts. I think you may rest assured that the people of England have no wish to limit in any respect by pressure upon the colonies their powers of self-government. The less there is of such pressure, the greater probably will be the desire to maintain the Imperial connection. All that can be fairly asked, and that must in justice be desired, is that the responsibility of England shall be relaxed or contracted in proportion to the limitation of her power. In their present mood, and with the prosperity that prevails among the classes possessed of influence, it is not unlikely to happen that England may be too remiss in providing for the reciprocal character of any measures that may be adopted. At any rate, I am sure you may be confident that no restrictive views will prevail to the prejudice of colonial freedom.

Wishing you all comfort and good success in the discharge of your important duties.

I remain, dear Sir,

Your very faithful servant,

W. E. GLADSTONE.

Honourable H. Parkes.




  ― 327 ―

Colonial Secretary's Office, Sydney,

September 26, 1874.

Sir,—I thank you for your letter of July 30, and for the frank expression of your views on the relations of England to the colonies. There can be no ground for apprehension that the loyalty of the colonies to the parent Nation or Imperial rule will diminish under the influences of self-government, and I unreservedly subscribe to the maxim, as stated by you, that England should be relieved of responsibility in proportion as her power is withdrawn from these outlying parts of the Empire. So far back as 1858, I made a motion in the Legislative Assembly to the effect that this colony should provide for its own military defence.

The grievance under which we sometimes fret, but more frequently laugh, is that England, as represented by her eminent men, and by her literature, forms no adequate conception of our importance. I enclose a table prepared here recently with much care, showing the aggregate and relative importance of these colonies. If at any moment of leisure you will compare the account given in the latest Gazetteer, you will see how we are popularly underrated.

I take the liberty of sending this table because I fear that in my letter of June 5 (having referred to a memorandum I made of it), I mechanically wrote 200,000 instead of 2,000,000 as the Australian population.

With great respect,

I remain, Sir,

Your faithful servant,

HENRY PARKES.

The Right Honourable

W. E. Gladstone, M.P., &c., &c.

During this administration an agreement was entered into by the Governments of Victoria, South Australia, and New South Wales for suspending the collection of Border Customs duties, practically establishing


  ― 328 ―
overland free trade between the three colonies for three years; but the treaty was abrogated by Victoria before the expiration of that term, and no similar measure has since been attempted.

The electric telegraph uniting the colonies with England was also established, and important steps were taken towards improving the ocean mail services, including the opening of the new route between Australia and America.

These various questions of high concern to the colonies, led to much controversy; but the Government carried their measures in Parliament by large majorities. Indeed the Ministry was in the end only defeated on a question of the exercise of the prerogative of pardon in criminal cases, which was tortured by heated passions and false representation into a charge of maladministration. As this discloses some of the worst features of Australian public life, while it was the cause of widening the recognised sphere of ministerial responsibility, the circumstances of the case are explained at some length.

While I was in England as Emigration Commissioner, in 1862, the crime of bushranging broke out with much violence in New South Wales, and in particular the name of Frank Gardiner became notorious as that of the reputed leader of a gang who stopped and robbed the gold escort at Eugowra. Several young men, arrested on the charge of being engaged in the escort robbery, were tried before Sir Alfred Stephen, Chief Justice, and capitally convicted of the crime, one of them suffering death. Gardiner, however, was not


  ― 329 ―
apprehended until February 1864, when he was discovered keeping a store at Apis Creek in Queensland, under the name of Christie. He was brought up for trial before Sir Alfred Stephen in July following, not for the escort robbery, but on two charges not capital, of which he was convicted, receiving three cumulative sentences amounting to thirty-two years' imprisonment, the first two years in irons. The late Sir James Martin, then Attorney-General, and afterwards Chief Justice, made a minute on Gardiner's complicity in the Eugowra outrage in these words:—‘The only capital case against Gardiner appears to be the case of the escort robbery, and as to that it seems to me that a conviction could not be reasonably expected,’adding his reasons for this opinion.

In 1871—a little more than seven years after Gardiner's conviction—two sisters of the prisoner got up a petition for his release; and they succeeded in obtaining in support of their petition the signatures of many respectable persons, including some who had held high offices in the colony. Mr. William Bede Dalley, who had held high office as Solicitor-General, and who was afterwards Attorney-General of the colony, signed his name to the following recommendation:—‘We the undersigned beg most respectfully to recommend the foregoing petition to your Excellency's merciful consideration, the more especially from the desire to reform evidenced by the prisoner before capture, and his conduct since his incarceration; and trust that your Excellency may be pleased, under all the circumstances of the case, to deem the period of the


  ― 330 ―
sentence already expired sufficient for the ends of justice.’ Attached to the recommendation of the petition were the names of several members of Parliament, and those of a number of magistrates and well-known merchants and traders. Mr. William Forster, M.P., who had filled the office of Colonial Secretary at the time of Gardiner's conviction, was specially referred to in the body of the petition. It stated that, on the occasion of an outbreak of prisoners in the gaol, Gardiner's conduct was ‘so noticed by the Inspector-General of Police that he assured the prisoner that he would see the Colonial Secretary (Mr. Forster), and have a record of it made for the future benefit of the prisoner.’ The petition, with this special reference to himself, was taken to Mr. Forster (now out of office) for his signature; and, with his attention thus challenged, he wrote, and subscribed his name under, the following words: ‘Having been referred to in a petition for the mitigation of the sentence of Francis Christie, as holding the office of Colonial Secretary when an outbreak occurred in Darlinghurst Gaol, I have much pleasure in testifying to the fact of Christie's good conduct on that occasion, as well as to his general conduct during the entire period of his incarceration, so far as it came under my notice in either case. I am glad to record this opinion, so that it may operate as it ought in the prisoner's favour. And, so far as these and other circumstances mentioned in the petition entitle his case to the favourable consideration of the Government, I am willing to add my testimony and recommendation.’ The ‘recommendation’of Mr. Forster was dated


  ― 331 ―
December 29, 1871—about seven years and six months after Gardiner's conviction—and it was written immediately below Mr. Dalley's ‘recommendation,’which expressed the hope that the Governor would be pleased, ‘under all the circumstances of the case, to deem the period of the sentence already expired sufficient for the ends of justice.’ About the same time the petition was brought to me for my signature, but I refused to sign it.

I entered upon the duties of the Colonial Secretary's Office on May 14, 1872, and the petition for the mitigation of Gardiner's sentence came to me in due course to be dealt with. As the prayer for the mitigation principally rested on the ground of Gardiner's good conduct in prison, I sent the petition in the first instance to the Inspector of Prisons for his report. As reports from this officer are not called for in all cases, my calling for a report from him in Gardiner's case was subsequently attempted to be tortured into evidence that I had some design to favour the prisoner. But it must be obvious to every intelligent and unprejudiced mind that, in a case of so much importance, where the question was one mainly of the prisoner's good conduct, if I had not obtained the report of the only officer whose business it was to be well acquainted with his prison life, I should have greatly failed in my duty, and laid myself open to well-merited blame. With this report, and reports from the officers of the gaol, and all other papers connected with the case, the petition was sent for the report of the Chief Justice, who had tried and sentenced Gardiner. So far from seeing any impropriety in the report from the Inspector of


  ― 332 ―
Prisons, the Chief Justice in his own report characterised that officer's remarks as ‘very judicious.’

Having thus brought together all the facts of the case, the opinions and testimony of the principal officers who had had charge of the prisoner, and the views of the judge by whom he had been tried, I submitted the petition to the Governor with a written minute of my own explaining the standing of the principal persons whose names were appended to it. This I did more fully in conversation with His Excellency about the same time, but I certainly had no desire, and never intended at any time, to do more than fairly explain both sides of the case. I took this course of explanation because His Excellency, having but recently arrived in the colony, could not be supposed to know either the special features of the prisoner's case or the positions of the persons who were using their influence in his favour, two of whom were ex-members of the Executive Council. Up to this time I had regarded the prerogative of pardon as vested absolutely in the Representative of the Crown, and I was aware, of my own knowledge, that two Governors at least—Sir John Young and the Earl of Belmore—had exercised it, as a rule, without the advice of Ministers.

On receiving this petition, in December, 1872, what did the Governor himself do? He did not grant the prayer of the petitioners. He did not concur in the recommendation of Mr. Attorney-General Dalley in December 1871—that the ends of justice would be answered by the seven years and six months of his sentence which the prisoner had then suffered, and that he


  ― 333 ―
might be released instantly unconditionally. He did not yield to the specious ‘recommendation’of Mr. Forster, who had recorded his opinion in December 1871 also, ‘that it might operate as it ought in the prisoner's favour.’ Sir Hercules Robinson judged the case on its merits, possibly attaching some weight to the opinions of the two ex-members of the Executive Council, but really mastering for himself the perplexities which surround the abnormal condition of our prison population. He knew that good-conduct prisoners were immured for unlimited years within the four dead walls of the same gaol in few Christian countries. His decision, I believe, while merciful to the prisoner, was just to society, and thoroughly sound in the interests of criminal treatment. He decided that, if the prisoner's conduct continued good for the term of ten years, he might then be allowed to exile himself. In arriving at this decision Sir Hercules Robinson took care to state that he ‘did not concur with the petitioners that the sentence which the prisoner had undergone was sufficient for the ends of justice.’

Several months after this decision in favour of Gardiner's exile—namely, in the early part of 1874—another petition was got up by one of the prisoner's sisters, praying that he might be released in the colony; and the name of Mr. Attorney-General Dalley was appended to this second petition. The case was again referred to the Inspector of Prisons for his report, and was then submitted to the Governor with the following words covered by my initials:—‘The Sheriff strongly deprecates a compliance with the prayer of the petition.’


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The Governor minuted the petition simply ‘Refused.’

This case, as favoured by the powerful influence of Mr. Forster in 1871, as dealt with ministerially by me, and as decided by Her Majesty's representative in 1872, was in 1874 made the subject of noisy agitations, inflamed by political passion and distracted by misrepresentations, in order to overthrow the Government whose measures and policy were generally approved by the country. Mr. Forster himself, amongst others, vigilantly assisted in the man[oelig]uvre.

Two considerations seem to justify this rather lengthy reference to the Gardiner case. It led to an entire change in the treatment of prisoners' appeals for a merciful exercise of the prerogative, and it was made the discreditable means of overthrowing the Government.

The case of Gardiner became the subject of frequent questioning and reference in the House, and Mr. Edward Combes, then member for Bathurst, gave notice of a condemnatory motion, which, as the case had been considered in connection with twenty-three others, finally took the following form: ‘That this House disapproves of the release of the long-sentenced prisoners whose names are set forth in the returns laid upon the table of this House by the Honourable the Colonial Secretary on May 22, 1874, including the name of the notorious prisoner Gardiner.’ Mr. Combes made his motion on June 3, as an amendment on going into Supply, and the debate was continued over several nights, closing on June 11 with a division of 26 to 26.


  ― 335 ―
The motion was negatived by the Speaker's casting vote.

In the meantime Ministers had addressed themselves to the consideration of the position in which the prerogative of pardon was actually exercised, and what ought to be our responsibility in relation to its exercise. It appeared to me, and I believe to my colleagues also, that the questions we had to consider were perplexed rather than cleared of perplexities by recent despatches from the Imperial Government on the subject. The result of our deliberations was embodied in the following paper:

‘MINUTE FOR HIS EXCELLENCY THE GOVERNOR.

I have given much consideration to the expediency of changing the system of treatment in the cases of petitions presented for the absolute or conditional pardon of convicted offenders, and have carefully read the correspondence on the subject, commencing with Lord Belmore's despatch of July 14, 1869, and closing with Lord Kimberley's despatch of February 17, 1873.

The minute of Mr. Robertson, which gave rise to this correspondence, does not appear to me to deal with the real question which the despatches of the Secretary of State present for determination in the colony. That question, in any view, is the extent to which the Minister is to have an active voice in the decision of these cases; but in my view it is much more—it is whether the Minister is virtually to decide in every case upon his own direct responsibility, subject of course to the refusal of the Crown to accept his advice, which refusal at any time should be held to be, as in all other cases, tantamount to dispensing with his services. The seventh paragraph of the minute alone touches the question of the Minister's relation to the Crown, and it seems to prescribe a position for the


  ― 336 ―
Minister in which, on submitting petitions to the Governor, he is to express an opinion on each case, to be ‘viewed as embodying no more than a recommendation,’after which he is to have no further concern in the matter. I cannot subscribe to this principle of Ministerial conduct, if this be what was intended by Mr. Robertson.

There can be no question, I believe, that from the beginning of the present reign the Home Secretary in England decides absolutely in all matters of this kind in the name of the Crown, and that the Crown does not in practice interfere. At no former time when the Crown took an active part in such decisions could the Crown, in the nature of things, be subject to a superior or an instructing authority. The wide difference between the position of the Minister and his relations to the Crown and to Parliament in the colony and in England is at once apparent on reading the despatches from the Secretary of State. The Governor is invested with the prerogative of the Crown to grant pardons, and, by the letter of the instructions conveyed to him by Lord Kimberley's circular of November 1, 1871, he ‘is bound to examine personally each case in which he is called upon to exercise the power entrusted to him.’By the instructions previously conveyed to the Governor of this colony by Lord Granville, in reply to Lord Belmore's despatch of July 14, 1869, he is told that ‘the responsibility of deciding upon such applications rests with the Governor,’and, in reference obviously to advice that may be tendered, it is expressly added that the Governor ‘has undoubtedly a right to act upon his own independent judgment.’And, finally, after the question has been re-opened by Sir Alfred Stephen, it is repeated by Lord Kimberley's despatch of February 17, 1873, that ‘in granting pardons’the Governor ‘has strictly a right to exercise an independent judgment.’

‘It seems to be clear that the ‘portion of the Queen's prerogative’ entrusted to the Governor of a colony, unlike the prerogative in England, is intended to be a reality in its exercise. It is undeniably the case that the representative of the Crown in a colony, unlike the Crown itself, is subject to a superior or


  ― 337 ―
instructing authority. What, then, is the position of the Minister, and what is intended to be the nature of the advice he may be called upon to give, and under what circumstances is that advice to be given?

In no sense of responsibility in this respect has the Minister in this colony hitherto been in the same position as the Home Secretary in England. He has neither exercised the function of pardon, nor as a rule been asked for advice. Except in rare cases, and then only in a limited degree, when special features or new facts have presented themselves, he has never actively interfered. What would be his position if he entered upon a system of partial advice, and accepted in matters of the gravest moment a secondary or limited authority, irreconcilable with the nature of his duties and responsibilities as a Minister under Parliamentary government?

Lord Granville says, ‘The Governor would be bound to allow great weight to the recommendation of his Ministry.’The circular of November 1, 1871, says, ‘He will of course pay due regard to the advice of his Minister.’Lord Kimberley, in his despatch of February 17, 1873, repeats the words of Lord Granville.

It cannot be doubted that the advice here intended is wholly distinct in its nature from the advice given in the general conduct of affairs. In the general case the advice is uniformly accepted, as the first condition of the adviser continuing to hold office. In all his acts the Minister's responsibility to Parliament is simple, undivided, and direct. But in pardoning convicted offenders, the Governor, although he is to ‘pay due regard to the advice of his Ministers,’is at the same time informed by the Secretary of State that he ‘is bound to examine personally each case in which he is called upon to exercise the power entrusted to him,’and that with him rests the responsibility. The exceptional advice implied seems to be of the nature of opinions or suggestions to which weight may be attached as coming from persons ‘responsible to the colony for the proper administration of justice and the prevention of crime,’but which in any case, or in every case, may be partially or wholly disregarded.




  ― 338 ―

It does not appear to be clear that the Governor is required by the Secretary of State to seek even this secondary class of advice in all cases. It would rather seem that the instruction does not necessarily extend beyond cases in which pardons are proposed to be granted, in which cases the Minister would simply have to concur in a decision already formed, or be placed in the somewhat invidious position of objecting to the extension of mercy. This view would shut out from the Minister's limited power of advice the numerous cases in which much concern is frequently felt by portions of the public, where a merciful consideration is prayed for and is refused.

I entertain grave doubts whether any change at present from the system which has hitherto prevailed will be beneficial to the colony. In a community so small as ours the distinctions between classes are very slight. The persons entrusted with authority and the relatives and friends of prisoners move closely together. The means of political pressure are easily accessible. A larger share by the Minister in the exercise of the prerogative of pardon would not, in my judgment, be more satisfactory to the public. But if a change is to take place, and the cases of prisoners are to be decided on the advice of Ministers, I can see no sufficient reason for making a distinction between this class of business and the ordinary business of Government. The Minister ought to enquire into and examine each case, and each case ought to be decided on his advice. The refusal of the Governor to accept his advice in any case of this kind ought to have the same significance and effect as a similar refusal in any other case. In no other way can the Minister be fairly responsible to Parliament for what is done. Either ‘the responsibility of deciding upon such applications’must still ‘rest with the Governor,’as Lord Granville expresses it, or it must rest with the Minister in the only way in which it would be just to hold him responsible.

HENRY PARKES.

Colonial Secretary's Office, Sydney,

May 30, 1874.

The change proposed—namely, that the prerogative


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of pardon should in future be exercised on the advice of Ministers—met with the approval of the Governor, who signified his concurrence, with a full explanation of his own views, in the minute which is here sub-joined:—

MINUTE BY THE GOVERNOR FOR THE EXECUTIVE COUNCIL.

I have read the minute of the Honourable the Colonial Secretary upon the subject of pardons, and it has occurred to me that the difficulty of dividing the responsibility in this matter, in the manner suggested by the late Secretary of State, can perhaps best be illustrated by showing how such a system would work in the practical transaction of business.

Hitherto the practice here has been for all applications for mitigation of sentences to be submitted to the Governor for his independent decision thereon. Some are sent to him direct through the post by the petitioners, others are presented personally by influential persons interested, whilst the remainder reach him through the Colonial Secretary's office, without any expression of opinion from the Minister. Taken altogether these applications are numerous. I have not kept any count of them, but I should think that a weekly average of twelve would certainly be below the number. All are carefully perused by the Governor. Some—in which the grounds stated, even if proved, would be insufficient to justify remission—are summarily rejected; others, upon which enquiry may seem desirable, are referred for the report of the Sheriff and the sentencing official, and sometimes the opinion of the Crown Law Officer is asked for. Previous petitions and papers in each case (if any) are carefully perused, and eventually the Governor gives his decision according to his own independent judgment. The papers are then sent to the Colonial Secretary's office, where the necessary official steps are taken to carry the decision into effect, without, I believe, in ordinary cases, the matter being even brought under the notice of the Minister.




  ― 340 ―

If a change such as has been suggested were to be carried out, the first question to be decided would be by whom should all petitions and applications for mitigation of sentences be considered in the first instance—by the Governor or by the Minister?

If, as at present, by the Governor, what would be the consequence under the instructions contained in the Secretary of State's circular despatch of November 1, 1871? The words of that despatch are as follows:

‘The Governor, as invested with a portion of the Queen's prerogative, is bound to examine personally each case in which he is called upon to exercise the power entrusted to him, although, in a colony under Responsible Government, he will of course pay due regard to the advice of his Ministers, who are responsible to the colony for the proper administration of justice and prevention of crime, and will not grant and pardon without receiving their advice thereupon.’

The last few words which I have underlined are not quoted by the Colonial Secretary in his minute, but they are important as showing the precise view taken by the Secretary of State. The Governor apparently may, after personally examining any petition for mitigation, and after giving due weight to the advice of his Ministers, exercise an independent judgment, and reject the application. He may say ‘No’on his own authority, but he can only say ‘Yes’on the advice of a Minister. The idea would seem to be to make the Governor and the Ministers mutually act as checks on each other. Either can negative a prayer for pardon, but both must concur before any such application can be granted. If, therefore, the petitions were considered in the first instance by the Governor, all cases rejected by him would at once be withdrawn from the cognisance or control of the Minister—a proceeding of which the latter might justly complain if any responsibility at all were to be imposed on him in this matter. In all cases in which the Governor proposed to mitigate the sentence, his decision would have to be approved and confirmed by the Minister, who might, if he saw fit, veto the merciful intentions of the Governor. It appears to


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me the Governor and the Minister would occupy somewhat anomalous positions in such cases. Under a constitutional form of Government the Crown is supposed to accept or reject the advice of responsible Ministers: in this matter the Minister would adopt or reject as he pleased the advice of the Representative of the Crown!

But suppose, on the other hand, that all petitions were considered and reported on in the first instance by the Minister, what would then be the result? Why, all cases rejected by the Minister need never be sent on at all to the Governor, to whom they would be addressed. For, as the Governor could not pardon without the advice of the Minister, there would be no object in troubling him with applications which he could not comply with. In cases in which the Minister advised a mitigation, the Governor could of course, if he saw proper, in the exercise of his ‘undoubted right, reject such advice—upon being prepared to accept the consequences. But practically he would never do so, except in cases which in his view involved such a gross abuse of the prerogative that both the Secretary of State and local public opinion would be likely to support him in the adoption of extreme measures. In all ordinary cases, in which neither Imperial interests nor policy were involved, the Governor, whatever his own private opinion might be, ‘would be bound to allow great weight to the recommendation of his Ministry, who are responsible to the colony for the proper administration of justice and prevention of crime.’Practically under such a system the prerogative of mercy would be transferred from the Governor to the Minister charged with such duties.

It was perhaps the recognition of some such difficulties which led to the suggestion of a compromise between these two systems, thrown out in Lord Kimberley's last despatch on the subject. In effect, his Lordship appears to suggest that the Governor might continue, as at present, to examine into and deal with all petitions for pardon; but that he should, before granting a mitigation of sentence in any case, ascertain by means of informal consultation that the Minister concurred in


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such a step. I fear that such a plan would not work well, and that its effect would simply be to fritter away any real or clearly-defined responsibility in such matters. In the first place, who would be responsible for the appeals rejected upon which charges of sectarian partiality or official corruption might possibly be based? Is the Governor to remain responsible for refusals, and the Minister to become responsible for pardons? Again, if the Minister is to be responsible for pardons, he would have, unless his concurrence were a mere matter of form, to go through all the reports and papers in each case in which a pardon was proposed by the Governor; and, as I have before shown, he would have to place upon the papers in writing his final acceptance or rejection of the Governor's advice. If such grave matters were disposed of in informal conversations, such a loose mode of transacting business would inevitably result in mistakes and misapprehensions. The Governor might decide a case under the full impression that the Minister concurred in his view, and yet he might find subsequently that there was some misunderstanding, and that his decision was repudiated and condemned.

For these reasons I entirely concur in the conclusion arrived at by the Honourable the Colonial Secretary in his minute—that the responsibility for the exercise here of the Queen's prerogative of pardon must either, as heretofore, rest solely with the Governor, or it must be transferred to a Minister who will be subject in this as in the discharge of other administrative functions only to those checks which the Constitution imposes on every servant of the Crown who is at the same time responsible to Parliament. The real question at issue is thus brought within narrow limits.

The Colonial Secretary expresses ‘grave doubts whether any change at present from the system which has hitherto prevailed here will be beneficial to the colony,’and he thinks that under the circumstances existing here the prerogative of pardon will be better exercised by the Governor than by the Minister. If the validity of such an argument were once admitted, it might perhaps be held to extend to other branches of administrative business. But the very essence of the Constitution


  ― 343 ―
is responsibility to Parliament for the administration of local affairs; and possessing, as the system does within itself, a prompt and effectual means of correcting any abuse of power, there can be little doubt that political training and official experience will soon impose restraints upon those impulses which sometimes mar the earlier attempts at self-government.

I have felt ever since my first arrival in the colony that the practice which has hitherto prevailed here, of entrusting an important branch of local administration solely to an officer who is not responsible to Parliament, is highly objectionable; and as I fail to see that any plan of divided responsibility in such a matter can be devised, I can only repeat here what I have on several occasions since the receipt of Lord Kimberley's last despatch stated to the Colonial Secretary in conversation—namely, that I am quite prepared to adopt a change of system; and I think for the future all applications for mitigation of sentences should be submitted to me through the intervention of a responsible Minister, whose opinion and advice as regards each case should be specified in writing upon the papers.

HERCULES ROBINSON.

Government House, June 1, 1874.

The Executive Council, on June 2, approved of the change, which was at once acted upon in all new cases. This step was not taken by me without serious misgivings, which I still feel, as to the entire wisdom of the change. But it seemed that the Ministers of the day had forced upon them by an unscrupulous party movement the choice between responsibility without authority and the authority of an active judgment coupled with a just responsibility. The new practice has now been substantially approved by the Secretary of State.note

Having regard to the exceptional state of the prerogative


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question up to that time, Ministers did not look upon Mr. Combes' motion as one entitled to political significance; and, as we were then over-burdened with public business, we paid no attention to it.

The next Session opened on November 3. The Governor had sent down to the House on June 25 previous a minute explaining his reasons for the course he had taken in the Gardiner case. The Opposition (led by the late Sir John Robertson) did not fail to attack the Government the moment the House met, but the Governor's minute on the Gardiner case did not form one of his grounds of attack. He submitted an amendment on the address, censuring the Government for not calling Parliament together at an earlier date, for its conduct in the matter of the Pacific Mail Service, and for other matters; but his motion contained no word of censure on the Governor's minute. On this motion of censure Mr. Robertson was beaten by 37 to 13, showing with sufficient clearness the feeling of the Assembly on the general policy of the Government. On November 25 Mr. Combes brought forward a resolution condemning the Governor's minute, on which the House divided, with 28 to 28, the motion being again negatived by the Speaker's casting vote. Ministers could not regard this decision by the vote of the Speaker as they regarded the decision of June 11. The terms of the motion, and the course of action virtually marked by disapproval, were wholly different, and assumed more distinctly a political complexion. We could not hope after this vote to conduct business


  ― 345 ―
in the Assembly with satisfaction, and we therefore advised the Crown to dissolve the House, which in any case was approaching, under the new Triennial Act, the end of its existence.

The general election that followed resulted in the return of a large majority of members who either openly approved, or abstained from expressing disapproval of, the general policy of the Government. The new Parliament met on January 27, 1875, and Mr. Robertson (afterwards Sir John), having learned a lesson from Mr. Combes, abstained from attacking the Government on general grounds, but moved an amendment on the address in the following words:

We would desire, with reference to the important matter which led to the dissolution of the late Parliament, most respectfully to express our regret that your Excellency's responsible Ministers should have advised you to communicate to the Legislative Assembly your minute to the Executive Council, dated June 23 last, with reference to the release of the prisoner Gardiner, because it is indefensible in certain of its allegations, and because, if it is considered to be an answer to the respectful and earnest petitions of the people, it is highly undesirable to convert the records of this House into a means of conveying censure or reproof to our constituents; and if it refer to the discussions in this Chamber, then it is in spirit and effect a breach of the constitutional privileges of Parliament.

Thus, the Governor's minute, which had been entirely overlooked by Mr. Robertson in the beginning of November, was in January made Mr. Robertson's battleground. The division was taken before midnight on the 28th, and in a House of 62 members the Government was defeated by a majority of four.




  ― 346 ―

The defeated Ministers did not wait for any further expression of the feeling of Parliament, but on the next day our resignations were tendered to the Governor, who, however, declined for several days to accept them. His Excellency very naturally felt aggrieved by the words in the amendment which declared that his minute was ‘indefensible in certain of its allegations.’The address as amended was presented by the Speaker, no motion having been made for its presentation by the House. Thus ended my first Administration, which retired on February 8, 1875, having held office within a few days of two years and nine months.

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