previous
next

‘LETTER II.

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


  ― 285 ―
Parliamentary contests,” on all such occasions, and to act on a true interpretation of them. When the late Earl Grey advised the memorable Dissolution on the Reform Bill of 1831, he declared that nothing but success would justify the advice he had given, and the same doctrine was held in the House of Lords on a recent occasion. If dissolving the Parliament of the country was a game of haphazard, any person who happened to be Minister could, of course, advise it without blame, and any person who happened to be Governor could assent to the advice without regard to the public interests. But it is the exercise of an extreme power under the Constitution, to be resorted to only in extreme cases, and when there is a rational belief that the views of the Legislature are not in accord with the views of the country. Hence the obligation upon those concerned, both the giver and the receiver of the advice, “to discern the real meaning” of the conflict out of which the advice arises.

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


  ― 286 ―
year—all these grave circumstances were against the Dissolution. Not only the considerations arising out of this state of things, but the very important circumstance that the Governor was about to vacate his Government, and the knowledge of the fact that his successor could not arrive in the colony for many months, was an additional reason of great weight why the House ought not to have been dissolved.

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


  ― 287 ―
eve of abdication or of death. On the contrary, every precaution has been taken to render it impossible for such an event to occur at a time when the nation is without a Parliament. Although by common law the Parliament expires with the King, a statute was passed in the reign of Anne which continues it in existence six months after the death of the Sovereign, and requires it immediately to assemble, although it may stand adjourned or prorogued at the time. In the event of a dissolution having been granted previous to the demise of the Crown, the Act 6 Anne, c. 7, revives the defunct Parliament for a like period. Admitting the difference between a change of Governors and a change of Sovereigns, it is a difference inevitable from the nature of things, and not one designed as an improvement upon the Constitution which is our model, nor one that can be held to justify a flagrant disregard of constitutional rule and expediency. If it is considered neither expedient nor safe for the nation to be without a Parliament on the accession of a new Sovereign, it cannot be desirable, to say the least, that this colony should be without a Parliament when it receives a new Governor.

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


  ― 288 ―
the old state of the law was dissolved, December 3, 1832, to make way for the election of the reformed House of Commons. Sir Robert Peel, in 1834, being called upon to form an Administration as the successor to Earl Grey and Lord Melbourne, advised a Dissolution on the broad intelligible ground that he proposed an entirely new policy. The next Dissolution was on the accession of Her present Majesty, in 1837, and had no political significance. In 1841, Lord Melbourne, being defeated on a motion of want of confidence, by Sir Robert Peel, by a majority of one (312 to 311) in a full House, advised Her Majesty to dissolve, which advice was accepted. The appeal to the country was made on the policy of lightening the burdens on trade and commerce. Sir Robert Peel's second Administration remained in office till 1846, when, after carrying the repeal of Corn Laws, he was defeated by a combination of Whigs, Radicals, and Protectionists. That great Minister was then at the height of his popularity, and the Parliament was five years old; he did not, however, advise a Dissolution, but retired from office. In 1847 Parliament, under the first Administration of Lord John Russell, was dissolved by effluxion of time. In 1852, Lord Derby, coming into power, announced the policy of returning to modified protective duties, and on that policy he obtained a Dissolution. In 1857 Mr. Cobden moved a vote of censure on the Chinese War under Lord Palmerston's first Administration, which was carried by a majority of sixteen. On the advice of Lord Palmerston Parliament was thereupon dissolved. So well had the veteran Premier “discerned the real


  ― 289 ―
meaning” of the contest, that he came back to the House of Commons with a clear majority of eighty-five, while Mr. Cobden himself lost his seat. The second Derby Administration was, in 1859, defeated on their Reform Bill, and obtained a Dissolution. Under Lord Palmerston's second Administration, Parliament was dissolved, in 1865, without political significance, having lasted more than six years. Lord Palmerston died before the assembling of the new Parliament, and Earl Russell became Premier, Mr. Gladstone assuming the lead of the House of Commons. This Administration was defeated on June 18, 1866, by Lord Dunkellin's amendment on their Reform Bill, and they resigned office, though it was generally understood that the Queen would have granted them a Dissolution. The last Dissolution was in 1868, when Mr. Disraeli appealed to the new constituencies under his own Reform Act, on Mr. Gladstone's proposal to disestablish the Irish Church. On finding the electoral returns against them, Mr. Disraeli and his colleagues resigned before all the elections were concluded—namely, on December 2, the writs being returnable on the 10th. The following is a copy of the Prime Minister's circular to his supporters:—

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

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


  ― 290 ―
this year, were placed in a minority in the House of Commons on the question of Disestablishing the Church in Ireland, they had to consider that the policy proposed had never been submitted to the country, and they believed that the country would not sanction it.

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

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

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


  ― 291 ―
of a Parliament in which, in the present aspect of affairs, they are sensible that they must be in a minority.

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

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

‘ “B. DISRAELI.

‘ “Downing-street, December 2, 1868.”

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

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


  ― 292 ―
approach the prerogative of Dissolution. With the single exception of the appeal made by Lord Melbourne, their advice has always been justified by the result. They have on all occasions “discerned the real meaning” of the contest, and been successful.

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

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


  ― 293 ―
30th instant, Sir James Martin will have continued himself in office eighty-nine days, without a Parliament, since he caused the late Assembly to be dissolved. The English writs are issued with the least possible delay; here they were delayed several days to suit the electioneering plans of the Ministers. The election for East Sydney was then hurried through within five days, and that for West Sydney within seven days, notwithstanding the long delay which has since taken place in convening the new Parliament, the principal Ministers themselves being candidates for those electorates. No time ought to be lost in restraining by legislation the power of Ministers to trifle—not to say tamper—with the Constitution, and to impair the public value of their own appeal to the people, by making the arrangements for a General Election subservient to their own official interests.’

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

Sydney, April 24, 1872.

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

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

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


  ― 294 ―
several months, and little business had been done, chiefly owing to the weakness of the previous Government. The new Ministry, on this account, very properly received much consideration from the Assembly during the latter part of that Session, although much dissatisfaction was felt at the manner in which the new Administration had been formed. As the financial year of New South Wales terminates on December 31, that Session properly belonged to 1870. On prorogation (June 22, 1871), Sir James Martin took a recess of 144 days, not calling Parliament together for the Session proper to 1871 until November 14, when it was quite impossible to consider the estimates and transact the necessary business within the year. During the recess the First Minister and two of his colleagues had attended a conference at Melbourne, which, in the general opinion here, resulted through their incompetency to the discredit of this colony. The proceedings of the Administration at the conference, and other causes, led to their early defeat by decisive majorities, on which Sir James Martin obtained the power of Dissolution. Supply had been voted for the month of January only when Parliament was dissolved on February 1. Four out of the six Ministers with seats in the Assembly were defeated by their former constituencies, and only Sir James Martin himself succeeded in obtaining election elsewhere, though all of them stood a second, and one of them stood a third electoral contest. The new Parliament is convened for the 30th instant, eighty-nine days after the Dissolution. In the meantime the Bank of New South Wales, under some arrangement not explained to the people, pays the salaries of the civil servants, on the heads of the departments, as I understand, making over their interest in them in anticipation of an Appropriation Act.

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

Your obedient Servant,

HENRY PARKES.




  ― 295 ―

University of Melbourne, April 30, 1872.

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

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

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




  ― 296 ―

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

I remain, &c.

W. E. HEARN.

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

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


  ― 297 ―
and kindly in his bearing; his mind was singularly acute in argumentative examination; and his methods of enquiry were lucid and searching. As he was passionately addicted to sport, evinced on all fitting occasions a high public spirit, and carried about with him an air of superiority, it is not surprising that the new Governor became popular with all classes. It was my happy fortune to be on the most friendly relations with His Excellency during the whole period of his administration. I was in office when he arrived, and I was in office when he left the colony, nearly seven years afterwards. In his high place he was an able man, fond of work and not afraid of conflict.

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


  ― 298 ―
of the change. To this Minister, who may be a layman, is assigned the administration of the prisons, the courts of justice, and minor divisions of the public service in close relation to the execution of the laws. The Attorney-General remains, though a member of the Executive Council, for the most part limited to his duties as legal adviser of the Crown, and as public prosecutor. A Department of Mines, presided over by a Minister, was created by Act of Parliament, and foreseeing what must soon come, tentative steps were adopted towards bringing into existence a Department of Public Instruction.

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

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


  ― 299 ―
the public and of the profession. Sir James was respected as a great judge. Time after time, in the appointment of other judges of the Supreme Court, the like considerations alone have been allowed to have weight. The same may, I think, be said (and has been indeed often said) of other important appointments, where example in official conduct not less than personal competency or merit in past service, is of the utmost value to the public. In July 1873 it devolved upon Ministers to recommend the high appointment of President of the Legislative Council. I selected Sir John Hay (who for the next eighteen years so worthily filled the chair), and my colleagues all concurred in the selection, which, on submission to the Governor, received His Excellency's warm approval.note The following correspondence is now published in vindication of the correctness of the views of all parties to that appointment, and as serving to illustrate the considerations which I can safely say have at all times influenced me in performing this class of a Minister's duties.

Rose Bay, July 18, 1873.

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

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


  ― 300 ―
Sir H. Robinson personally, and I trust that you will now accept my assurance that I am very much gratified by the compliment itself, and still more by the manner in which it has been paid to me. Its value is greatly enhanced by the fact that you must have acted on the principle that an appointment of which the honour is more to be considered than the emolument should be the result not of canvass but of selection.

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

I remain, yours truly,

JOHN HAY.

Sydney, July 14, 1873.

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

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

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

It is gratifying to us that His Excellency the Governor


  ― 301 ―
cordially concurred in these views. Accept my sincere congratulations upon your assumption of your new duties.

Faithfully yours,

HENRY PARKES.

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


  ― 302 ―
It was read the second time on February 27 by a majority of thirty-three to twelve; it passed through its further stages, and was sent to the Council, when that House, in a spirit of insolence which could only be generated by the vicious principle of nomineeism, refused to receive it on the following resolution:—

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

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

Owing to fortuitous circumstances, the question of


  ― 303 ―
electoral reform was put off from time to time—chiefly through changes of Ministries developing nothing but feebleness. But it fell to my lot eventually to legislate on the subject, and my Bill of 1873, with some modifications, though passed long afterwards, is now the law.

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

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

previous
next