― 192 ―



ON January 21, 1866, I received a note from Mr. Martinnote requesting me to call upon him at his chambers. On seeing me, he at once informed me that he had been sent for by Sir John Young to form a Ministry, and that he had accepted the commission. He explained some things which the Governor had said to him which had an interest for both him and me in relation to persons who might join us as colleagues, but which have no interest for the public at the present day. He said he wished me to take the office of Colonial Secretary, he himself holding the office of Attorney-General with the premiership. We then had some conversation as to the course to be pursued and the measures to be introduced, and Mr. Eagar, who was to hold the office of Treasurer, joined us. I intimated my willingness to join in the formation of the Government, and within two hours afterwards the other offices were offered and accepted. The new Government, notwithstanding some apparent inconsistencies in its political composition, was

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destined to render important services to the country. Mr. Martin and I held opposite opinions on several public questions, including questions of taxation and electoral reform; on others we were in cordial agreement, and our agreement embraced the question of education, the management of destitute children, prison management, and other subjects demanding public attention. We were not long before we embodied our views in measures for the consideration of Parliament.

The Industrial Schools Act, which I hope will long remain on the Statute Book, was entirely the work of Mr. Attorney-General Martin. Its scope in meeting the necessitous circumstances of outcast children is fully explained in the fourth section, which is in these words:—‘Every child whose age in the opinion of the person apprehending or ordering the apprehension, as hereinafter mentioned, shall not exceed sixteen years, who shall be found lodging, living, residing, or wandering about in company with reputed thieves or with persons who have no visible lawful means of support, or with common prostitutes, whether such reputed thieves, persons, or prostitutes be the parents or guardians of such child or not, or who shall have no visible lawful means of support, or who shall have no fixed place of abode, or who shall be found begging about any street, highway, court, passage, or other public place, or who shall be found habitually wandering or loitering about the streets, highways, or public places in no ostensible lawful occupation, or who shall be found sleeping in the open air, may be apprehended by any constable or peace officer or by any other person,

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and taken before any two Justices of the Peace to be dealt with as hereinafter is directed.’ The Bill provided for the proper care and instruction of the children and their due apprenticeship to industrial callings. Its provisions were eloquently explained to the Assembly by its learned author, who never appeared to more advantage than when speaking on subjects of this character. Both Houses took to the Bill very kindly, and after friendly debate it became law. Two institutions were soon established under the provisions of this Act, one on the ship Vernon, described in a previous chapter, and another for girls which has had a more untoward history. It is a fact, however painful, that young girls, who fall within the circumstances of neglect and destitution contemplated by the law, are much more difficult to rescue than boys of similar ages. This arises, strange as it may appear to some persons, not from the more vicious disposition, but from the more sensitive and tender nature, of the children. The difficulty is twofold, in fixing upon the right system of treatment and in finding the right person to carry it out. Our industrial school for girls, though it has undoubtedly done much good, has not been a pronounced success.

Side by side with this measure was a Bill, also the exclusive work of Mr. Martin, ‘to establish juvenile Reformatories.’While the Act just referred to stopped short of the actual criminal class, and aimed at rescuing the children pushed to the brink of the precipice, the second measure was designed to meet the case of juvenile law-breakers actually under the sentence of the

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Courts. This Bill was also speedily made law. The fourth section enacts, ‘Whenever any person whose age shall, in the opinion of the Court or Justices by or before whom such person shall be convicted as hereinafter mentioned, be under sixteen years shall be convicted of any offence punishable by law either upon information before a jury or on summary conviction by imprisonment for the period of fourteen days or any other longer period, such Court or Justices may in addition to the sentence which may be then and there passed as a punishment for such offence direct such offender to be sent at the expiration of such sentence, or, instead of passing upon such person the sentence prescribed by law for such offence, direct such offender to be sent forthwith to some one of the aforesaid reformatory schools, to be there detained for a period of not less than one year and not exceeding five years, and such offender shall be liable to be detained pursuant to such direction. Provided that the Governor with the advice of the Executive Council may at any time order any such offender to be discharged from any such reformatory school.’ Not more than one reformatory has been established under this Act, and that one for young female offenders; and, in perplexing contrast to the industrial school for girls, it has been a marked success. The Shaftesbury Reformatory, under the management of Mrs. Agnes King, is really a credit to the colony. This seems to prove that success depends almost wholly upon individual fitness in those placed in authority over such institutions. No reformatory for boys has as yet been established; chiefly, I believe,

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because the number of boy criminals has not been considered sufficient to justify the expense of the separate maintenance of such an institution. But it is now in contemplation to establish a reformatory for boys in connection with an experimental farm in one of the country districts.

While this legislation was being carried through Parliament, the attention of the Government, and my attention as Minister especially, was directed to conditions of misery and neglect in some of the public institutions, and of lawlessness and daring crime in the country which were of a startling character. The asylums for the sick and for the insane were discovered to be in a state which could not be allowed to continue without public disgrace, and in some parts of the country the wild crime of bushranging had put forth a front of audacity and cruelty which produced a general feeling of terror. While regularly attending in my place in Parliament, and bearing my full part in its proceedings, I was called upon to give my vigilant attention to the grave problems which had to be solved in the maintenance of the law and the public security, and in the general work of administration. These large subjects will, however, be more properly dealt with in another chapter. I return to the legislative work of the Government in the Session of 1866, which fell more especially to my hands.

On the occasion of my election to the Legislative Council, in May 1854, I thus stated my opinion in general terms on the question of education: ‘With regard to the great question of education, I have

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already declared myself, as the systems at present stand, in favour of the national system. But so much importance do I attach to the work of mental training as the foundation of every social virtue, that I should be prepared to support any modification or alteration of that system which would more adapt it to the peculiar wants of the remote, thinly populated, and scattered districts of the colony.’ As explained, I did not accept office until twelve years after this date, but before the first year of my ministerial life was over I had introduced and succeeded in passing the Public Schools Act of 1866. The Bill provided for the establishment of Public Schools of a non-sectarian character, and for the continuation of support to Denominational schools on certain clearly prescribed conditions, one of which was that they should receive the same class of trained teachers, the same lesson books, and be subject to the same inspection and discipline as the public schools. But one hour a day was to be set apart for denominational teaching by the respective churches. One golden provision of the Bill was that no person, man or woman, should be allowed to enter any school as a teacher who had not been trained for the work of teaching. These were the main features of the new measure, but they constituted a vast change from the previous state of things.

It was proposed to train under the direction of the State all the teachers for all the schools, to render it impossible for any person of influence to advance his dependant to the post of teacher, to put a stop for ever to the interference of the clergy in the school management.

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The teachers were to be classified according to their attainments and degrees of aptitude for teaching, and to receive stipends so regulated and apportioned. Provision was made to protect the health of the pupils by allowing a certain measurement of air space for each child. The classes of schools extended beyond public schools and denominational schools, and included provisional schools where the number of children was not sufficient to constitute a regular public school, and in remote places where there might be a group of only eight or ten children, half-time schools. In the case of these last-named schools, the school went to the children instead of the children going to the school. The teacher, on horseback or in boat, would travel ten or twenty miles and teach one small gathering of children three days, and then on to another cluster of bush pupils and teach them for three days.

The new system was to be administered by a Council of Education consisting of five members appointed by the Governor in Council. The first Council consisted of the Hon. James Martin, Premier; the Hon. W. M. Arnold, Speaker of the Legislative Assembly; Professor Smith, of the University of Sydney; the Hon. George Allen, and myself; and I had the honour to be elected President.

The introduction of the Bill was the signal for an ecclesiastical storm. I was made the central object of attack, and no limits were set by my reverend and very reverend assailants to their inventive skill in personal abuse. My faults were magnified on the darkest pattern, and where no slender groundwork of fact could

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be discovered, there was no scruple in assigning to me all sorts of imaginary crimes. From the first, however, the lay members of the English Church did not warmly sympathise with the heated feelings of their clergy; and in the course of time the clergymen themselves, for the most part, withdrew from the conflict and accepted the new system. But the hierarchy of the Roman Catholic Church were too devoted to the policy of that marvellous organisation to recede from their position, to accept the lessons of experience, or to admit the evidence of truth. The denominational schools, the schools of the Churches, under the provisions of the new law, became greatly improved, and did good work. As will be seen at a later stage, the priesthood would not ‘let well alone,’and they were abolished, after an existence of some fifteen years.

In the struggle for the Act of 1866 there were more dangerous enemies than priest or parson—the pretended friends of the cause in Parliament, who had more concern in discrediting the Government than in promoting any form of education. I recollect meeting one influential member behind the Speaker's chair, who abruptly said, ‘I shall have to vote against your Bill—I can't stand Denominationalism!’ Obviously he had not read the Bill, but with him no good thing could come out of Nazareth. By absences, by ill-concealed sympathy with any kind of opposition, and by other little devices of hindrance, he added his negative quota to delay and the chances of defeat; but I suppose he thought better of his first resolve, for he did not vote against the Bill. Another Liberal member, who vehemently praised the

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Bill on the second reading, voted against reducing the minimum number of pupils required for the establishment of a public school in country districts from ‘forty’to ‘twenty-five,’ after he had been conclusively shown in debate that the higher number would prevent schools being established where they were most wanted. The Bill did not go far enough for some; we went much too far for others. The Bill was read the second time on October 10, 1866, the division showing thirty-six ayes against fourteen noes. The third reading was carried by forty to five. In the Legislative Council the Bill had comparatively a smooth passage, and I know it was with much satisfaction that Sir John Young gave to it the Royal assent on behalf of Her Majesty. The Secretary of State (the Duke of Newcastle) acknowledged the receipt of the Act in a despatch which spoke of it in very complimentary terms.

The Public Schools Act of 1866 was destined to receive the approval of remarkable men in other parts of the world. Mr. W. E. Forster, after successfully conducting his Education Bill through the House of Commons, addressed to me the following letter:

80 Eccleston Square, London; S.W.

October 6, 1870.

Sir,—I beg to thank you for the copy of your Educational Report for 1869, which you have kindly sent me.

I had already received most useful and interesting information with regard to the working of your Act from the able secretary of your Board of Education, Mr. Wilkins, and I must sincerely congratulate you on the good which has been already done by the measure with which, as Colonial Secretary, you were identified.

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I wish I may have the same good fortune with regard to the Education Bill which it was my duty to carry through the House of Commons last year, and of which, as finally passed, I must beg your acceptance of a copy.

I have the honour to be, Sir,

Your obedient servant,


Henry Parkes, Esq.

Earl Russell, at a later period, cordially concurred in the policy of the law. Other persons of eminence, including my friend Thomas Hughes, conveyed to me at various times their approval. Amongst others, Mr. Carlyle more than once wrote to me approving of the good work done.

For the first four years after the Public Schools Act came into operation, I filled the office of President of the Council of Education, and during that period I often took part in the ceremony of laying the foundation stones or of the opening of new schools. In 1869, having consented to open a new public school at Dundas, a village near Parramatta, I made the occasion serve for an address of some length, expository of the new system and its successful working. This speech was afterwards extensively circulated in pamphlet form. I sent a copy of it to Mr. Carlyle, and received the following letter from him in acknowledgment. The letter has an additional interest, as it also expresses his views on emigration as a question of British policy.

5 Cheyne Row, Chelsea,

September 21, 1870.

Dear Sir,—Your letter came to me in Scotland, and since my return last week I have read carefully your speech on the

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Education question.note You are very kind to remember me so steadily, and always from time to time to send me some interesting notice of what you are about.

I am greatly pleased with your calm, quiet, lucid and honest speech, and with all the useful and manful labour you have so successfully gone through for one of the most sacred interests in human affairs. The speech, though studiously inoffensive, gives clear indication of the much opposition you have had to confront in achieving such a bit of calm and impartial legislation, surrounded by so many difficulties and contradictions. I well enough understand the clamours of dark sectaries, Protestant and Catholic, especially of your Irish priests, the worst section of that miserable category; but I own myself much surprised that you should have incurred the estrangement of … in the adventure. You give no details of that little personal matter. My judgment of … and of the Thing you have been advocating and accomplishing, leads me to believe that this little rub will only be temporary. At all events, I can congratulate you on having laid down a plan, judicious, clear, impartial, probably the only sound plan practicable in your colony, which plan is already in vigorous practice there, and will be a blessing to millions on millions of your colonial countrymen, and indeed more or less a benefit to all men long after we are gone. Well done, well done.

There is at present among us a considerable stir about Emigration, a growing desire that the Government would take some charge of co-operating with the colonies in this great interest of ours, which I hope the Government, in spite of its lazy reluctances, will gradually be compelled to do. By a little human arrangement between mother-country and her daughters, you and Sydney, for example, might have as many hardy Englishmen emigrants as you could gradually make room for, to the unspeakable advantage of us and of you. A thousand by the year, or two thousand, if you liked. But there needs co-operation, a mutual stretching out of hands on both sides of the ocean;

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and, alas, on our side the one thing we are sure of is not a practical putting forth of hands in any kind of work or government, but a plentiful wagging of tongues in Parliament and elsewhere. If to you on your side of the water any opportunity occur, I charge you not to neglect it. The Government is deaf at this time, and will continue so I know not how long; but there are various private associations already of magnitude, and vigorously growing. I specially mention Sir George Grey, formerly a Governor among you, as the leading man in this movement here, who might be the properest of all to consult in the first instance, if you had occasion.

Believe me,

Yours, with many good wishes and regards,


The Government, during the first year of its existence, not only passed the Public Schools Act, but it was successful in doing a number of other useful things, making provision for the Public Service, and proroguing Parliament before Christmas. I was quite a novice in official business, but I made it a rule to investigate for myself all important matters, to test the ‘usages of the office’by common sense and my own imperfect historical knowledge, and to trust nothing to others which I could do myself. It was a great advantage to me to be brought into intimate intercourse on public questions with Governor Sir John Young. He had held the office of Chief Secretary for Ireland, and had, I believe, been Whip to Sir Robert Peel; and his knowledge of Parliamentary life was full and accurate. He had fine administrative faculties, and had given much attention to the study of questions in which I was deeply interested, such as the management of

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criminals under sentence, the care of destitute children, and other social reforms.

Up to this period, the Governor exercised the prerogative of pardon in ordinary criminal cases, largely influenced by his own sense of justice and responsibility; it was not until some years afterwards that the responsibility in such cases was almost wholly assumed by the Governor's advisers. If a petition for the remission or mitigation of a criminal's sentence, signed by ‘influential’persons, came before Sir John Young, his first thought was that there was a design to bring pressure to bear upon his judgment rather than to urge the claim for consideration on the merits of the case. In the case of a prisoner well connected in society, he expressed his views in the following letter to me:—

Government House, Sydney,

November 8, 1866.

My dear Mr. Parkes,—Please to have the petition in favour of … referred to the Judge who tried the case for his observations.

Whatever stress I may be disposed to lay, and you know I do lay the greatest on yours as well as Mr. Martin's opinion, still it is my duty to refer petitions for remission of sentences to the Judges who presided at the trials and to be guided by their reports.

This, you may rely upon, is the only safe course in the interests of the public, however great the temptation to interfere, or however hard it may seem not to exercise leniency in a particular case.

Allowing full weight to what you sent me in a recent note as to various defects in some of the Courts, and the shortcomings which are stated to exist in various directions, still I must consider to what your conclusion leads, viz. to the practice of altering

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Judicial sentences at the discretion of the Executive. Now I have no hesitation in saying that the remedy is infinitely, immeasurably worse than the disease. The setting aside the Judge's sentence may in some cases be unavoidable, but it is a practice fraught with peril—liable to indefinite abuse and equally indefinite misconstruction. Indeed in every instance the misconstruction is certain, and so far tends to weaken confidence in the administration of the laws.

The Executive (including the Governor), whatever their desire to attain an equitable result, have really no accurate means of sifting the grounds of the opinion, to which they give effect, if they ignore or contravene that of the Judge. Usually their interference is invoked, and is rarely ever exercised in any other instance than that of parties earnest in favour of the convict. The statements made to them are ex parte, they are not tested by cross-examination. Unsworn is taken as against sworn testimony. The demeanour of witnesses cannot be observed nor one confronted with another, as before the Judge and Jury. These are grave deficiencies, fatal to an efficient revision of sentences on the part of the Executive.

In England, and in Ireland where the practice is the same as in England, and where I had ample experience when I was Secretary of State, remissions of sentences are not made without the concurrence of the Judge except in cases of dangerous sickness, of special service in prison, and under regulations of the kind adopted latterly here. Any deviation from this strict course is immediately observed upon in Parliament and checked.

Already even in my time (and I have tried to the cautious), both the Judges in this Colony and the Legislative Assembly have found occasion to remonstrate against the exercise of this prerogative.

One case of remission naturally and inevitably leads on to another, and I know not where we shall stop if we depart from the example of the mother-country and forget the warning given by the American States, in a great many of which so great laxity obtained in conceding remissions, and the evil proved so intolerable, that the humiliating course for the Governor

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and Ministers was resorted to of taking the prerogative out of their hands entirely and vesting it in an independent board. At the same time I see that many of the sentences pronounced in the district Courts seem relatively unequal, and of disproportionate duration. But a remedy might be found for this by conference with or instructions to the D.C. Judges.

Any rule of general application will be safe enough, but the dealing with individual cases is pregnant with mischeif, and the dealing with them without reference to the Judge involves a breach of principle which leaves no locus standi in any case upon which pressure political, social, or sympathetic, can be brought to bear.

I am sure you will not mistake the animus of these remarks —they are meant rather to guard against possible future dangers than to apply to existing circumstances.

Very truly yours,


It will be seen by the tenor and suggestive spirit of this letter that the Governor was very sensitive to what he conceived to be the responsibility cast upon himself as the representative of the Queen, while he aimed at holding the scales of justice free from improper influences however previously concealed. The main principle insisted upon by Sir John Young is undoubtedly sound; and in my connection with cases of prisoners in subsequent years I have felt the value of keeping that principle steadily in view. I shall have to examine at greater length the delicate and difficult question of the exercise of the prerogative of pardon when I come to the first Administration formed by myself, and the assumption of the office of Governor by Sir Hercules Robinson.