PARLIAMENTARY GOVERNMENT •
OR
RESPONSIBLE MINISTRIES
FOR
THE AUSTRALIAN COLONIES.
BY
H. S. CHAPMAN.
TASMANIA:
PRINTED AND PUBLISHED BY PRATT AND SON, ELIZABETH STREET, HOBART TOWN.
1854.
See copy of the original pamphlet at the State Library of Victoria website.
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CHAPTER I.
The Subject Stated and Illustrated.
The Subject which the following pages are designed to bring before the notice of the reader, is that which has somewhat loosely been called Responsible Government.
This term was first adopted in Canada, and has since been very generally used in our colonies, as well as in all discussions relative to the government of colonies, to designate that species of executive government which has, for upwards of a century and a half, existed in England, and has within the last fourteen years been extended to Canada and the rest of the British North American colonies with the most marked success ;— namely, a ministry responsible to the lower branch of the legislature.
Taking Government to consist of three branches, the legislative, the administrative, and the judicial, it has become an axiom of all free states, and especially of the English and American constitutions, that the three departments should be kept distinct; but of course without impairing the constitutional controul of the legislature over every department of the state.
This salutary principle of the separation of powers being acknowledged alike by the constitutions of Great Britain and the United States, the two countries have adopted very different methods of carrying it out in practice.
In America, not only are the three functions and the collective bodies administering those functions kept distinct; but no individual can belong to any two of the bodies, or in any way interfere in any two of the functions at one and the same time; the constitution providing that “no person holding any office under the United States shall be a member of either house during its continuance.”
The British constitution, on the other hand, not only does not forbid office to a member of either House of Parliament, but it [4] absolutely requires that the highest officers of the executive government should secure seats in the House of Commons or have seats in the House of Lords. Nor are all our judges excluded from Parliament. The Lord Chancellor, or Lord Keeper, is Speaker of the House of Lords; the three Chief Justices are generally Peers; whilst the Master of the Rolls and many of the inferior judges may be elected members of the lower house.
[[4]] The executive power of the United States of America is vested in the President alone; unity of the executive being the avowed principle of the constitution. The expedient resorted to, in order to secure due responsibility on the part of that high officer is frequency of election. That is deemed constitutionally and practically sufficient. All below the President are responsible to him, and not to Congress, or to the people. He is assisted by a cabinet of heads of departments, appointed by himself, the members of which are bound by the letter of the constitution to give him their advice in writing if required. Not having seats in the legislature, and not being responsible thereto, they can scarcely be deemed a ministry in our sense of the word. Thus, what we call, and what we so highly prize, as Parliamentary Government—that is, a ministry responsible to, and virtually removable by a parliamentary majority is—unknown to the constitution of the United States.
This peculiar condition of the executive may not be ill suited to the American constitution. The Americans themselves must perceive some important advantages in it, or they would not have permitted it to continue as part of their constitution for so long a period. But the English reader will perceive that it is quite unsuited to an hereditary limited and constitutional Monarchy. The election of the head of the executive every four years is their sole expedient to secure responsibility. We secure the same advantage, not by electing the head of the executive, not even by electing the chief officers of the government, but simply by requiring the latter to have seats in the legislature, and then by withholding parliamentary support from those whose administrative policy is not approved of. Thus, under the British constitution, a ministry which cannot retain the confidence of a majority of the House of Commons, cannot, for any length of time, carry on the Government. But no ministry is expected to abandon office at the first defeat. If ministers have reason to believe that the majority of the Commons, which is hostile to them, has not the support of the country they may advise the Crown to dissolve Parliament. If the elections, upon such dissolution, are in their favour, they retain power— if against them, they quietly make way for their opponents. Instances are not wanting of a really vigorous ministry succeeding in converting a minority into a majority, without a dissolution as well as with one. Lord Liverpool’s ministry—the longest ever known in England since that of Sir Robert Walpole—received and survived [5] a very formidable shock at the very outset. Mr. Stuart Wortley (the late Lord Wharncliffe) moved an address to the Prince Regent “to form a strong and efficient ministry” in place of the new ministry, to whom all sorts of weaknesses were imputed; but as the address was carried by a bare majority, composed of all sorts of incongruous elements, there seemed no prospect that any other ministry would enjoy a much better fate. Lord Liverpool therefore advised the Prince Regent not to comply with the address; and as he succeeded, according to his anticipation, in gaining over some of the materials of the majority against him, he soon converted a weak into a strong and lasting Government. In 1784 Mr. Pitt sustained repeated defeats, but he felt that he was popular out of doors, and instead of retiring, he advised the not unwilling Monarch to maintain him in office for some months; and, on a dissolution, he subsequently obtained a majority. Sir Robert Peel also in 1835 did not retire upon the first defeat—(a majority of 10 against him on the election of Speaker)—but retained office until several hostile votes of the House of Commons convinced him that he could not carry on the Government. Thus, although a ministry need not—and indeed ought not on all occasions to abandon office on one defeat—although an appeal to the people may often be advisable and ultimately successful, yet, under the principle of the English constitution, no set of men can possibly carry on the Government against a decidedly hostile House of Commons.
So in these colonies, when the constitutional principle of the responsibility of the official members to the Councils shall have been adopted, though it may often be wise and proper to retire upon a single defeat, yet it may sometimes savour of administrative pusillanimity to do so. The moment or occasion for retiring cannot be fixed by rule or precedent. It must be settled in the colonies, as in the Mother Country, by the mutual strength, determination, and prudence of the parties in the Councils or Assemblies, and above all, by the support which the party in power is conscious of enjoying among the constituencies—the ultimate court of appeal on all vital questions.
[[5]] Under the constitution of the United States several instances have occurred in which the Government has been administered for a considerable period on principles diametrically opposed to the views of the majority of Congress. This of course might, and in fact did on one occasion last four years—whereas in England it could scarcely last as many months. So long as it did last it rendered the executive government nearly similar to those of the Australian Colonies, or rather to what they would be without nominated members. No doubt Congress might have put a stop to this by refusing supplies. But this, as will be shown in a subsequent chapter, is a remedy not to be resorted to on light grounds; and Congress, on such occasions, has wisely determined to wait for the recurrence of [6] the presidential election. In the colonies the executive may persist in measures and in a general line of policy opposed to the views of the majority without either the American or the English check.* [Footnote: * In New Zealand, by the new constitution, the people of the provinces elect the head of the executive; and, as the principle of a responsible ministry has been adopted, they enjoy in that colony the double check. The New Zealand constitution is worthy of the watchful eye of the statesman.] What we desire to recommend is the English constitutional check of a responsible ministry. It has the recommendation of being in perfect accordance with the British constitution, with which we hope the Australian constitutions will shortly be made to coincide as nearly as our peculiar circumstances and condition will allow.
The subject of Responsible Government in Canada has been already slightly alluded to in a preceding page, and perhaps it may be useful, by way of illustration, to enter somewhat more into detail. Most persons whose recollection goes fourteen or fifteen years back (for complaint has since been effectually silenced by Responsible Government) have heard something of Canadian grievances, discontent, and finally rebellion ; but few are aware of the happy contrast furnished by that great, prosperous, and loyal colony since the introduction of a Parliamentary ministry.
The Provincial Parliaments of Upper and Lower Canada consisted each of two chambers. The Houses of Assembly were elected by the people; the upper chambers, called Legislative Councils, were nominated by the Crown, that is, by the respective Governors.
For upwards of a quarter of a century before the unhappy disturbances in the two Canadas there was a perpetual conflict between the Representative Assemblies of both provinces and the executive governments on almost every question that can possibly interest or engage a free people. On the part of the Assemblies it was a struggle for constitutional controul. On the part of the executive it was a determination to resist all responsibility to the local legislature. This element of strife in some way or other, directly or indirectly, found its way into nearly every question of public interest. Information respecting the proceedings of the executive Government was refused to the Assemblies on the most paltry subterfuges—information of such a nature as to afford presumption that there was no other motive for withholding it except the established practice of resisting the Assemblies. Correspondence with the Colonial Department on matters of purely local interest never saw the light, unless the Secretary of State ordered it to be communicated. The ample Blue Books of the present day, defective as they sometimes are in affording full information—obsolete as they almost always are in point of time—had no existence whatever twenty years ago. The only method of obtaining information as to the acts and policy of the local Government then was to enlist the sympathies and secure the aid of some liberal member of Parliament, who [7] moved for the information required. To the present Earl of Derby, to Mr. Hume, to the present Earl Grey, and others, and at a subsequent date to Mr. Roebuck and Sir William Molesworth, the Canadians were indebted for such information as could be extorted from the ministries of that day, and the whole collection of ten or a dozen years scarcely equalled the information now voluntarily laid before Parliament by the Secretary of State during a single session. Moreover, if the information now published as a matter of course, be incomplete on any subject, a word to the Secretary or Under-Secretary is generally enough to secure all that is required. And this candour on the part of ministers has its reward.* [Footnote: The Duke of Newcastle’s evidence before the Stoner Committee as a model of official candour which had no parallel twenty years ago.] It gives them the power to say no! when disclosure is inconvenient; and such refusal is taken as well founded from its mere infrequency; whereas when concealment was the rule, a motion for papers often involved a long and angry debate.
In these colonies it seems hitherto to have been a favourite doctrine that the legislature has nothing whatever to do with executive matters, and papers and despatches analagous to such as would readily be communicated in England, or in Canada, are refused on the above ground. But this is not the doctrine or practice of the British constitution. It is quite true that the legislature has nothing to do with executive action; but it has every thing to do with controul. The executive is accountable to the legislature for its acts, and until that accountability is placed upon the same footing as that which exists in the Imperial Government, by securing the responsibility of some of the officers of the Government to the legislature—these colonies have but the shadow of a constitution.
The proper moment for making communications must always be left to the discretion of the executive. There are many matters which ought not to be disclosed, while in progress, but they are fewer in number in a colony, which has no foreign relations and no diplomacy, than in the Mother Country. But where the internal affairs and interests of the colony are alone concerned, there can be very few subjects which ought to be withheld from the legislature. With a responsible ministry in these colonies the practice of the British ministry and Imperial Parliament would come at once to be followed. The executive would avoid that worst of weaknesses— resistance to the reasonable desires of the Assemblies for the mere sake of being thought firm, and would by a conciliatory tone and by a disposition to concede where concession is not improper, purchase the right to make a stand where circumstances should require it. The Assemblies or Councils also, accustomed to conduct of this kind on the part of the executive, would in most cases take [8] a first refusal as conclusive, except of course upon questions on which the ministry and the opposition—the constitutional opposition it may in such case be called—may differ, and think it worth while to measure strength.
[[8]] Before the introduction of a responsible ministry into Canada the greatest inconvenience was continually felt from the fact that the executive Government had no influence whatever within the walls of the Assemblies, The irresponsible officers of the Government could seldom obtain seats, so that all communications between the executive and the legislature was by message, and address in answer, as in the United States of America. To any one accustomed to the working of the English constitution this must seem a very great defect, and yet it is quite certain that if the official bodies in the Australian colonies depended on the popular suffrage it would only be in especial cases that a public officer would obtain a seat. Since the adoption of a responsible ministry the members of the Government have had no difficulty in obtaining scats in the United Parliament of Canada. Some of the very men who would have been rejected under the old system of irresponsibility are now even asked to allow themselves to be put in nomination. It may fairly be inferred that it would be so in these colonies. There are happily some public officers whose long and faithful services would secure them seats, and once in the assemblies their official aptitude would secure them office. It is a great mistake to suppose that the introduction of a responsible ministry necessarily involves a complete change of men. This subject will be more completely referred to in a subsequent chapter.
The evil of a lower house without any representative of the Government therein, was by no means compensated by a nominated upper chamber where the dominant party in each province was all powerful. Indeed nothing tends so much to impart to a Government a partizan character as the necessity for relying upon the party of the minority for support.
The dominant party in Canada was of a character very different from the official bodies in the Australian colonies. It was really an important and powerful party, closely connected with the very soil of the colony, and bearing some resemblance to a European aristocracy. The reader will judge, therefore, how great was the difficulty of introducing responsibility into the Government of a colony where such a party had long had possession of power. In both the Canadas a species of oligarchy had grown up, consisting of the principal and oldest families in the colony, the most wealthy merchants interested in the prohibitory commercial system which then prevailed, and the great official families, many of whom dated their own or their father’s connexion with office from a period antecedent to the American revolution. These families were not only connected together to an extent to acquire the name [9] of the “Family compacts,” but they had also powerful family and commercial connexions in England. These persons assumed the airs, and had in fact some of the attributes, of an aristocracy. They had the prestige of antiquity in their favour, for some of them were noble before the conquest of Canada. They formed an exclusive society. They treated every one not within their narrow pale as belonging to an inferior class. Even within the walls of Parliament their power and influence were not inconsiderable. Ono of the greatest of the Canadian seigneurs or feudal lords was a member of the House of Commons, and a Cabinet Minister, when the troubles broke out, and it is just to add influenced his colleagues on the side of liberality. At that time every colony had its own peculiar commercial monopoly, and if any one dominant faction were attacked in or out of Parliament all united against the common enemy. Nothing has tended to break in upon the power of the Canadian oligarchies so much as the adoption of the principle of free trade, and nothing consequently has produced so great an influence on the progress of constitutional reform; but at the period to which we refer, when the so called Family compacts were in full power, they had quite sufficient influence to get rid of any Governor who did not place himself in their hands.
This powerful party, it is but just to say, had some conspicuous merits which even increased its strength. With rare exceptions the moral character of its members was unimpeachable. It numbered within its ranks men of high education and general information, and above all it had the wisdom to secure any rising ability that appeared in the political field. But the best proof of its sagacity was its ready acceptance of Responsible Government the moment it perceived that reform to be inevitable.
In resisting the popular demand for reform, this party always claimed to be alone endowed with capacity to govern, and they denounced their opponents as totally destitute of official aptitude. Though this was a double exaggeration, the assumption, arrogant as it was, to say the truth, was not wholly destitute of foundation. The party had so long enjoyed an hereditary monopoly of power, that they had become skilful in all the details of Government, according to the principles upon which colonial government was then conducted ; whilst exclusion from power, united with the hopelessness of acquiring it, had to some extent incapacitated their opponents for office. The lower branch of the two legislatures was in fact alone open to the honourable ambition of the rising men of the popular party.
[[9]] It is not a little curious that the party denounced as destitute of official aptitude, before Lord Durham’s mission, has since constructed several strong and efficient ministries, strengthened perhaps by some of the old public servants and of course by new and rising men. The surprising manner in which Canada has advanced in [10] population, wealth, and general resources since the introduction of a responsible ministry, is such as would have been impossible under a feeble Government.
When the disputes between the Assemblies and the dominant oligarchies had reached their height, and neither party was disposed to give way;—when the Upper Houses systematically rejected every measure of the Assemblies, and the Assemblies as systematically refused all supplies ; when party acrimony reached the most fearful height, and even men of moderate views found themselves drawn into the vortex of one party or the other, two definite propositions were put forward—one by the reformers of Upper Canada, and the other by the Assembly of Lower Canada. The remedy proposed by Lower Canada was an elective legislative council; that of Upper Canada was—Responsible Government.
These plans were both strongly urged on the Home Government in the year 1835, but were not adopted. It is just possible, that if the two Canadas had made a united demand for elective upper chambers and a responsible ministry, it would have been successful, and the unfortunate rebellion might have been prevented ; but the mere fact of a separate scheme from each province indicated want of union, and the strong influence of the dominant party succeeded in stopping for a time the adoption of either measure.
The progressive steps by which a fierce popular opposition to a dominant faction partly degenerated, and was partly driven into rebellion, need not here be traced. It may easily be supposed that all measures of constitutional improvement yielded to the necessity of putting down rebellion. It was when that indispensable object was accomplished, that Lord Durham was sent to Canada with very extensive powers.
Lord Durham’s justly celebrated Report was laid before Parliament in the early part of 1839. It contained a very searching investigation into the evils and anomalies of the local Government. Its recommendations were very numerous ; but as many of them applied to local and special evils and abuses, they are of no interest here. It is sufficient to say that Lord Durham very strongly recommended the immediate adoption of Responsible Government; and, on the restoration of the constitution, which had been suspended during the rebellion, his Lordship’s recommendation was most wisely adopted. There can be no doubt that this great constitutional reform, which has been very faithfully carried out by a succession of able Governors,* [Footnote: Lord Sydenham (Poulett Thomson), Sir C Bagot, Sir C., afterwards Lord Metcalf, and Lord Elgin.] has been the principal means of converting an oppressed and discontented people, disposed to loyalty, but yet often on the verge of, and once in actual rebellion, into a contented, happy, and most loyal and well-governed people. Previous [11] to the year 1840 Canadian grievances formed an annual subject of parliamentary discussion. Members only regarded the subject as one of inevitable annoyance and difficulty. It was an impenetrable maze which no ordinary industry would enable even the most sagacious statesman to penetrate. Since that time Parliament has never been troubled with the disputes of parties in Canada; they are settled as English party disputes are disposed of—by a parliamentary debate and division on the spot; the Governor, instead of being an anti-popular partizan, occupying what Lord Elgin very happily characterized as a position of dignified neutrality.
The reader will, it is hoped, pardon the extent to which it has been thought advisable to refer to the history of the introduction of a responsible ministry into Canada. As to the other North American colonies the same reform has followed solely because of its remarkable success in the most important colony of the group. The same reason would justify its introduction into the Australian colonies. Australian and New Zealand complaints still occupy a considerable portion of the time and attention of Parliament; with the same power of settling them, or rather of preventing their occurrence on the spot, Parliament would be as little troubled with Australian affairs as it is with the affairs of Canada. Earl Grey in his most interesting account of his administration of the affairs of the colonies* [Footnote: published by Ridgway, 2 Vols, 8vo., 1853] admits the perfect success of Responsible Government in Canada. Why should the same remedy fail to produce the same beneficial results in these colonies ? Every presumption is in favour of its immediate introduction. Indeed, with the almost universal opinion of English statesmen in its favour, there seems reason to believe that it would have accompanied the Australian Act had not the existence of transportation interposed a difficulty now happily removed. Even the introduction of a representative legislature was, in the opinion of Lord Derby, incompatible with the maintenance of transportation; and although Lord Grey did not share in that opinion, he could not fail to perceive that a responsible ministry could not have maintained itself for a single day against a majority opposed to transportation.
Lord Durham suggested that legislation was quite unnecessary on the subject; “an instruction from the Crown to the Governor to make a practice of selecting the public servants from among those who possess the confidence of the legislature” being sufficient. “The change” says Lord Durham in his report, “would simply amount to this, that the Crown would henceforth consult the wishes of the people in the choice of its servants.” “The responsibility to the United Legislature” [Footnote: One of his Lordships’s recommendations was, that the two Canadas should be united under one Legislature, which was also adopted.] —he continues—“of all the officers of the Government except [12] the Governor or his Secretary, should be secured by every means known to the British Constitution. The Governor, as the representative of the Crown, should be instructed that he must carry on his Government by heads of departments, in whom the United Legislature shall repose confidence, and that he must look for no support from home in any contest with the Legislature, except on points involving strictly Imperial interests.”
Here we have expressed in a few words the whole theory of a responsible or parliamentary ministry. The Governor now, almost from the necessity of his position, a partizan—for if he did not put himself at the head of the minority he would have no supporters at all out of the ranks of the officials—would no longer have any inducement to show preference to one set of men over another. In the apt words of Lord Elgin, already cited, he would occupy a position of dignified neutrality. He would seldom have occasion to call for the interference of the Secretary of State—never in fact except in case the local legislature should over-step its lawful jurisdiction and encroach upon Imperial interests. Even in such cases the necessity for interference would seldom reach the Secretary of State, as the Governor’s constitutional power would be sufficient to stop the mischief.
Even before we had the successful and happy example of Canada to refer to, it might have been inferred from English constitutional experience alone that the mutual influence of the executive and legislature upon each other would cause the business of Government to proceed satisfactorily, without those collisions which must arise between an irresponsible executive and a representative legislature. There is no reason—there could appear no reason why a Governor—standing precisely in the position of the Crown at home— should not, by a fair and legitimate exercise of the prerogative entrusted to him, be as able to carry on the Government by means of a Parliamentary majority as the Prime Minister is in England.
The reader is now in a condition to understand what is meant by the term Responsible Government. In the next chapter will be exhibited the state of the principal governments of the Australian colonies under the present irresponsible system.
[13]
CHAPTER II.
The Executive Council and the Official Bench under the Old and New Constitutions.
The introduction of partially elective legislatures into the Australian colonies under the Act for the better Government of the same, created, or rather disclosed an anomaly in the existing executive bodies which has tended greatly to weaken the influence of the several Governments in the Legislative Councils, and in the eyes of the people of the several colonies.
In describing this anomaly, the state of the several Governments will be reviewed, from the introduction of the new constitution in 1851 to the close of the second session of the legislatures of the several colonies in the early part of 1853. If it be desired to descend to a more recent period, the reader, in each colony, will have no difficulty in making the application for himself.
In all the Australian colonies the Governors have from the first been assisted by a sort of cabinet, called the Executive Council, whose advice they are instructed to take on important occasions, but are not required blindly and implicitly to follow.
These councils—unlike the English cabinet which grew out of the inconvenient number of the Privy Council* [Footnote: For a very interesting account of the origin of the English Cabinet, see Macaulay’s History of England, vol. i. p. 211.] —have an existence authorised by law. In some colonies they owe their existence to an Act of Parliament; in others to the charter of the colony. By the Royal instructions minutes are directed to be kept and transmitted periodically to the Secretary of State.
These executive councils have almost invariably consisted of the highest and most responsible officers of the Government, but the selection of the individuals to compose them has not been uniform. In all cases the Colonial Secretary and Treasurer have been members, but the incumbents of the other seats, to make up the usual number of four or five, have varied. In some colonies the senior military officer commanding the troops has been of the executive; in others that officer has not been deemed essential. The mere accident [14] of real or supposed danger—as, for instance, from the natives in Zealand or the prisoners of the crown in Van Diemen’s Land, — may have been the parent of the rule; whilst in others, the absence of such danger, or the presence of a mere detachment of troops, under an officer of inferior rank, may have caused the Council to be made up without looking to the commanding officer. Again : the Chief Police Magistrate in one colony, the Attorney-General in another, the Collector of Customs in a third, may be found occupying the remaining seat; and the selection will generally be found to have been originally determined by the ability of one officer and the comparative inefficiency of others. Thus the seat occupied by the Chief Police Magistrate of Van Diemen’s Land may be traced to the accident that Mr. Forster, a former Chief Police Magistrate was a man of superior ability and administrative capacity; while the seat now enjoyed by the Attorney-General of Victoria is as clearly owing to the acknowledged fact, that he was at the time of his appointment, almost the only efficient man connected with that Government.
The old non-elective Legislative Councils consisted of certain official and non-official members nominated by the Governors. Both the number and proportion of one class to the other differed in different colonies. In some the number was six, in others fifteen. In some the official and non-official members were equal in number. In others the non-official members were required to be the more numerous class. In all, the Governor presided and performed the two functions of speaker and leader. If a man of experience and ability, he enjoyed a real and well-deserved weight and influence altogether apart from his mere conventional and local pre-eminence. In all these councils, the non-official members were commonly chosen from among men who were either decidedly favourable to the general policy of the Government, or were men of known moderation who were not likely to carry into the council chamber a very earnest opposition; they were indeed, often “men of no politics”—a class of men who were despised in the time of Pericles, and are not respected in the days and in the country of Lord John Russell.
Legislative Councils so composed scarcely afforded scope for animated debate. They were easily managed by Governors who from their moderate abilities and limited information would have exercised no influence in a popular assembly, and it was only upon very rare occasions (as for instance on transportation in the old council of Van Diemen’s Land) that any very decided tone against the Government exhibited itself. In the Legislative Councils so composed the members of the Executive Councils necessarily took their places and so long as they exhibited a respectable acquaintance with the functions of their respective departments, (and this they generally did) and could explain any question that arose within the sphere of their duties, in a plain and conversational way, they would pass the [15] ordeal of such a body, at least without reproach. Such councils were too small either for oratorical display or for acute and animated debate, and in the very early stages of a penal or conquered colony they were perhaps not ill-adapted to the early business of legislation.
The Act for the better government of the Australian colonies found councils of this description in full but not very active operation. They had for some time exhibited a degree of torpor of which in some cases the executive partook. Sometimes this feature wan redeemed by an active minded Governor, but even in such a case the manifest predominance of the will of one man cast a despotic air over the Government, to which even an occasional good measure did not reconcile the public mind. The colonies had in truth outgrown these primitive institutions. While the councils had become less efficient by an indisposition on the part of the best men to become nominees; the colonists had at the same time became better instructed on constitutional questions, and for some years before the Act was passed a demand had arisen for more popular—believed also to be more efficient institutions,—a demand which in itself afforded presumptive evidence that the colonies were ripe for representation.
The constitutions bestowed by the recent Act upon Victoria, South Australia, and Van Diemen’s Land bear some resemblance or rather analogy to the old Scotch constitution. The people elect the representatives, and the quasi-peers sit and vote in the same house. The Imperial Act, leaving it to the local legislature to determine the number of members and other details, prescribed the proportion of each class, Two-thirds of the whole were to be elected by the people, and one-third of the whole number (or one-half the number of the elected members) to be appointed by the Crown or the Governor, and of the appointed members, one-half only could be chosen from the official ranks.
The several colonial Councils having fixed upon different numbers for the new Councils, the proportions and numbers during the whole of the period under notice stood as follows [Footnote: The Council of Victoria has been augmented to 54 members, and a proposal has been made to augment that of Van Diemen's Land to 36.] :—
| Class. | New South Wales. | Victoria. | South Australia. | Van Diemen’s Land. |
| Officials | 9 | 5 | 4 | 4 |
| Non official Nominees | 9 | 5 | 4 | 4 |
| Elected | 36 | 20 | 16 | 16 |
| Total | 54 | 30 | 24 | 24 |
[16] In these Councils the Governor, as the reader is aware, has no place. His double function of President and leader is now divided. That of President is filled by a speaker constitutionally chosen and approved of as in England, and his function of leader is or ought to be filled by the Colonial Secretary, who, with the other official members, constitute a virtual ministry, somewhat similar to the ministries of the English monarchs before they became responsible to the majority of the English Commons.
Now it must be obvious that this quasi-ministry ought either wholly or in a considerable proportion to be composed of executive councillors. That is, that those high officers of the colonies who compose the quasi-cabinet council, should be the men to carry the measures of the Government through the several legislatures. In the old councils it was so; but under the new constitution of the Australian colonies, in order to secure some efficiency in debate and in committee, the several Governors have found themselves compelled to depart from the obvious rule, and exclude some of the old executive councillors from the Legislative Councils, appointing in their places, when they could be got, men who, not unversed in administrative business, and not afraid to open their lips, could explain and advocate the measures of the Government, and oppose with firmness and skill, those measures emanating from the other side, which the Government might deem either inexpedient or premature ; together with those imperfectly considered measures which in all popular assemblies occasionally emanate from individual members.
The constitution of New South Wales has now been in existence about 12 years, [Footnote: The New South Wales Act is the 5th & 6th Vict, c 76, amended by Act 7th & 8th Vic, c 74, and the Act for the better Government of the Australian colonies in the 13th & 14th Vic., c 59.] and it might reasonably have been expected, that by this time, the official body would have been so weeded and sifted as that all would have been capable of addressing the council in explanation of the views of the Government, and in defence of their own opinions, or of those they were called upon to adopt. But this was not generally the case. Although the large number of the council placed nine official seats at the disposal of the Government, and enabled the whole of the executive council to have seats on the official bench of the legislative council, without too rigid a scrutiny into the aptitude of the members of the quasi-cabinet, the official bench was never free from the defect under notice. Indeed, if one colony be compared with another, the official bench of Van Diemen’s Land was, from the beginning, making due allowance for the smallness of its number, superior to that of New South Wales, both in general aptitude for business and capacity for debate.
The following table will show the composition of the two councils of New South Wales during the period under notice:-
[17]
| Executive | Legislature |
| Commander of the Forces | …………………… |
| Colonial Secretary | Colonial Secretary |
| Colonial Treasurer | Colonial Treasurer |
| Attorney-General | Attorney-General |
| Auditor-General | Auditor-General |
| Solicitor General | |
| Postmaster General | |
| Inspector of Police | |
| Commissioner of Crown Lands | |
| Collector of Customs |
It is by no means too far-fetched a notion to say that the official members, except that they are not yet responsible to the commons, bear relation to the English ministry by a not very remote analogy. The four executive councillors may be considered in the light of ministers “in the cabinet,” and all below the first four may be styled ministers “not in the cabinet.”
Of the four quasi-cabinet ministers two were said to be good Speakers, and both had the advantage of great official experience. Hence the measures and views of the Government could be explained and enforced by those who might be presumed to be constitutionally acquainted with them. Among the members “not in the cabinet” the Solicitor-General was said to be a fair speaker and a well informed man. And this was the whole deliberative, or to coin a word, debative force of the Government in the legislature. Of the other six members, whereof two were “in the cabinet”—four “not in the cabinet”—scarcely one could address the house with effect, and some novice opened their lips. Even the Treasurer—the finance minister of the colony—the quasi-chancellor of the exchequer, who should explain his budget,—was content, on the house going into committee on the estimates, to leave to the experienced Colonial Secretary the duty of fighting the financial battle—always a sharp one in our colonies—against all reasonable and unreasonable, wise and foolish objectors.
In the colony of Victoria, the matter was far worse. In the midst of difficulties of no ordinary kind, arising from the discovery and profuse production of gold, the Lieutenant-Governor found himself with the very weakest executive in all the colonies. Of course, the Lieutenant-Governor’s measures have been severely criticised—not merely by the local press, but it is understood by persons who hoped to profit by his recall. But great allowances must be made for the difficulties of his position. He could not rely on the people around him. He could offer no reward sufficient to attract men from the alluring lottery of the gold-fields into the police. He could not calculate—no one could calculate upon the riches of the gold-fields or upon the prospective revenue, and yet in the face of the worst of all difficulties—uncertainty as to the future – he managed to reduce the colony from a state of comparative anarchy to very considerable order, and that too with very imperfect materials at his disposal. During the winter of 1852 it was dangerous to be out after dark. The city of Melbourne was inundated with escaped convicts from Van Diemen’s Land, with conditionally pardoned men, with expirees; and some ticket-of-leave men, who tried their fortune either at the diggings or in Melbourne for a while, and returned just in time for muster. Yet with a police ill composed, and open to bribes, before the month of December the town had been so completely reduced to order that it was safe even for women and children to move about at any hour. Outrages there undoubtedly were, but they were chiefly confined to aggressions of the dissolute class one upon the other. [Footnote: • Extract from a Melbourne paper, April 1853.—“All Vandiemonians.”— At one of the recent trials at Castlemaine for hocussing, throttling and robbery, the prosecutor and the four criminals were all Vandiemonians. They were all “birds of a feather,” and the prosecutor, who was a newly-installed policeman, was declared by one of his brother constables to be the worst of the lot!”]
The composition of the two councils of Victoria was in December 1852 as follows:
| Executive | Legislature |
| Colonial Secretary | Colonial Secretary |
| Treasurer | ……………….. |
| Attorney-General | Attorney-General |
| Collector of Customs | ……………….. |
| Auditor-General | |
| Solicitor-General | |
| Master of Supreme Court |
This state of things in Victoria did in the course of the second session, lead to a singular rupture. The only men at all capable of conducting the business of the Government in the Legislature at that time were the Attorney-General and the Auditor General. The Attorney-General was necessarily absent at times attending to his professional duties which, owing to the influx of population from Van Diemen’s Land had very much increased. At such times the whole brunt of the government business fell upon the Auditor, and he was of course expected to support the views of the Government. But how was he to get at those views? He was not a member of the quasi-cabinet, and information was very sparingly, and even grudgingly afforded him. At length he found his position so anomalous in relation to the council, and so painful to himself, that he resigned; and the Government certainly lost one of its best—one of its few good officers. Such is his own account. On the other hand, he was accused of unduly interfering with the official functions of others. It is quite possible that this may have been the case; but how could it be otherwise? He was called upon to fill [19] the office of a sort of ministerial jack-of-all-trades, and it is not very wonderful that he found himself driven to tread on the toes of his colleagues, who were not unwilling that he should relieve them of their duties, but were not disposed to allow him to reap the credit. Of the four members of the executive council of Victoria, two only were deemed competent to take seats in the legislative council, and of the five official members of that body two only were considered decently competent, namely, the Attorney-General and the new Auditor-General. The reader may here be reminded that a Colonial Secretary has since been sent from England, and some other changes have taken place, which may perhaps have strengthened the ministry.
In the colony of Van Diemen’s Land the same feature has from the first been exhibited of an official bench in the legislative council, constructed by passing over the majority of the members of the executive council, and seeking as high a degree of efficiency as could be obtained among the members of the official body generally.
From the first assembling of the legislature in December 1851, to the end of 1852 two changes took place in the quasi-ministry, making in effect three ministries in two sessions. The first was rendered necessary by the arrival of a new Colonial Secretary in April l852 ; the second, by a division among the members of the official body on the question of transportation in September of the same year.
It will be convenient to exhibit the three quasi-ministries before offering any remark :—
| Executive | Legislature |
| Colonial Secretary* | Colonial Secretary |
| Colonial Treasurer* | Colonial Treasurer |
| Commander of Troops | ……………….. |
| Chief Police Magistrate | ……………….. |
| Auditor-General | |
| Solicitor-General |
[*Footnote: Both Temporary. The acting Secretary was Treasurer and the acting Treasurer was Clerk of the Executive Council. Both of course fell back upon their permanent offices.]
In the second session, after the arrival of the new Colonial Secretary, the composition of the two bodies stood as follows:
| Executive | Legislature |
| Colonial Secretary | Colonial Secretary |
| Colonial Treasurer | ……………….. |
| Commander of Troops | ……………….. |
| Chief Police Magistrate | ……………….. |
| Auditor-General | |
| Solicitor-General | |
| Clerk of Executive Council |
[20] In the adjourned session of the council Dec. 1852—Jan. 1853, after the Colonial Secretary and Clerk of the Council had taken leave of absence, in consequence of their disagreement with the Governor on the question of transportation the following was the composition of the two bodies respectively:—’
| Executive | Legislature |
| Colonial Secretary | Colonial Secretary |
| Colonial Treasurer | ……………….. |
| Commander of Troops | ……………….. |
| Chief Police Magistrate | ……………….. |
| Attorney-General | |
| Solicitor-General | |
| Private Secretary |
The blanks, in all these lists, in the official bench in the legislature are so many pieces of evidence of the unfitness of the members of the executive council to fill seats in the legislative council, with this exception, that the Commanding Officers of the troops very properly keep themselves aloof from active politics, and as the Attorney-General must have a seat, he may be said to fill that place in the legislature which the commanding officer declines to fill.
The first appointments in Van Diemen’s Land were undoubtedly the very best that could have been made. No one could reasonably take exception to the expedient of passing over the executive for the sake of securing efficiency in the legislature, and as the principal officer of the executive, under the Governor, and the able and experienced Clerk of the Council (first as Treasurer, and afterwards as Chairman of the Land Board) had seats, the measures of the Government could be introduced to the house under the guidance of those who were constitutionally conversant with them. The then acting Treasurer was a man of very great ability, extensive information and experience, high character, and of no mean power as a debater. The law officers of the Crown were both efficient men. The Attorney-General was a good speaker, a man of great industry, and not unskilled in his profession. The Solicitor-General, without being quite so fluent a speaker; was much readier in debate. He had also- the advantage of varied and extensive information. Moreover, he is a good lawyer, and from his family connexions in the colony had great weight and influence in the country, which was not a little enhanced by his known opinions against transportation. Speaking of all these appointments in the order in which they stand in the first of the above lists, the Lieutenant-Governor thus described them in-a despatch to the Secretary of State dated 10th January 1852:—
“With regard to the official members, the three first, are, from their position, necessarily members of the legislative council, and I appointed Mr. Francis Smith, the acting Solicitor-General, in preference to any other of the officers of the Government,, in order to [21] have the benefit of his talents and power as a debater in the various questions which must necessarily be brought under discussion.” [Footnote: Further papers on the Australian Constitutions, presented by order of Her Majesty, 1st July 1852, page 91.]
Considering that the Lieut.-Governor had only four seats in the legislature at his disposal, it must be admitted that the search for efficiency out of the pale of the quasi-cabinet was much more successful than in the other colonies.
At the commencement of the second session the now Colonial Secretary took his seat on the official bench, displacing the acting Secretary, and this was the only change that took place in the quasi-ministry. In order to let him in, however, it was necessary that one should retire. Pursuing the analogy of the English constitution, the Treasurer—the head of the financial department of the colony—should invariably occupy a seat on the official bench, he being, in the words of the despatch already quoted, “an officer who, from his position is necessarily a member of the legislative Council.” If the Treasurer had retained his seat, however, either the Solicitor-General or the Clerk of the Executive Council must have given way. Now between these two gentlemen it was very difficult to choose. Both were ready debaters; both were well informed men. The one had the advantage of legal knowledge and influence in the country; the other, that of great official and legislative experience. In the end, the valuable services of both these officers were retained in consequence of the resignation of the Treasurer. Thus, the official bench was kept in full strength , but at the cost of exposing the weakness of the executive council—only one member of that body having a seat in the legislature.
At the next change the same feature as to the comparative ineligibility of the executive councillors to fill seats in the legislature was preserved, the Colonial Secretary being the only member of the quasi-cabinet on the ministerial bench. In the reconstruction of the official party in the legislature a constitutional anomaly, so to speak, was introduced by the appointment of the Lieutenant-Governor’s Private Secretary to fill the scat vacated by the Clerk of the Council. The necessity for resorting to an appointment so unprecedented in its nature affords a further instance of the difficulty of the search for efficiency out of the pale of the cabinet. There cannot be a doubt that this appointment weakened the character and influence of the official body in the legislative chamber, and would probably have done so, even had the Private Secretary shown considerable skill in debate. The circumstance that the new member was a subaltern in the same corps in which his political superior was a captain tended to create an impression, both in and out of the council, that the military obedience due from the inferior to the superior officer would be carried—perhaps almost unconsciously—into the council. But there was really not much weight in this impression, even if [22] strictly correct; because implicit obedience to the head of the executive—and not as in England, concurrence with the well-considered determinations of the whole cabinet—was expected of every official member.
The constitutional character of the official bench was further impaired by the position assumed by the Private Secretary. If a government amendment was to be moved to an address, it was the Private Secretary and not the Colonial Secretary who moved it. If a question as to the intentions of the executive was asked, the answer generally came from the lips of the same officer. The inevitable consequence was, that the government bench and the appointed members came to be regarded as a body having interests and sympathies distinct from, and antagonistic to, those of the elected members and the colony at large. A moderate degree of care would have avoided this, and indeed, to some extent, it has been avoided in the other colonies. A very remarkable illustration of this complete separation of the elected and the appointed members occurred in March 1853. The Tasmanian reader will recollect that an address to the Queen, thanking her Majesty for the paragraph in the Royal Speech announcing the prospective cessation of transportation was moved by an elective member: to this an amendment was moved by the Private Secretary. Some discussion arose as to the relative merits of these two documents, and an elected member, in the hope, as it seemed, of securing unanimity, moved for a conference between the elected and appointed members, in order to strike out from the two rival addresses a sort of tertium quid, to which both parties could agree. This proposal virtually treated the two sides of the chamber as two distinct bodies, and this anomalous proposal was actually agreed to by the official body, not one of whom appears to have perceived that the conference virtually destroyed the integrity of the council. No doubt the legislatures under the Australian Act, are as bi-formal as the fabled centaur, but even that monster was described as being moved and animated by one heart and head.
So far as the colony of South Australia is concerned, the information within our reach is too imperfect to enable the state of the executive to be spoken of with any degree of confidence; but, judging from one known instance, that colony is believed to form no exception to the general condition already described.
To conclude. The conspicuous features exhibited by the several Australian governments are these:—
1. That although the members of the executive councils, being the constitutional advisers of the Crown, ought “from their position necessarily to be members of the legislative council,” yet they have been found, in a majority of instances, not qualified to undertake the duties. [23]
2. That it has consequently been found necessary to pass most of them over, and seek for competent men among the lower ranks of the official body.
3. That even this search has only been attended by a partial and modified success—a success differing in degree however in the several Australian colonies.
4. That we have consequently in some of the Australian colonies the remarkable phenomenon of a silent ministry, or, at least, only a portion of the members of the official bench capable of explaining and enforcing the policy of the Government.
It is not intended to be either asserted or implied that there are not in the several governments some public officers of respectable and even considerable ability. The whole tenour of the foregoing remarks forbids the supposition of such an imputation. Neither is it intended to be insinuated that the public officers do not perform their ordinary and appropriate duties with credit to themselves and advantage to the public. What is really meant is, that the new constitution came upon the official bodies somewhat by surprise, and found in some of the highest offices gentlemen whose previous training had not been such as to enable them to fall readily into the new legislative duties necessarily attached to their respective offices.
The above distinction, properly viewed, really illustrates the effect of responsibility or the want of it. The public officers are responsible to the head of the executive for the proper performance of their official duties. They consequently are careful to make and keep themselves competent. They are not responsible to the legislature for the proper performance of their legislative duties; and therefore, it is only a few of the more ambitious who are careful to acquire the necessary qualifications.
[24]
CHAPTER III.
Stopping Supplies.
They who have hitherto anticipated that the introduction of representative legislatures into the Australian colonies would necessarily bring with it a due constitutional controul over the policy and acts of the executive governments, seem to have relied on the power of stopping supplies, whensoever the necessity of resorting to that extreme and violent constitutional remedy should arise.
That power being acknowledged to be inseparable from representative institutions—the power of granting necessarily including the power of refusing to grant—it was hoped that a salutary fear of provoking its exercise would restrain the executive from persevering in any line of policy obnoxious to the people.
It will not be difficult to show that these views are erroneous. The remedy is no doubt a most useful and valuable one. An unwise executive may occasionally be found to persist in a line of policy, the most injurious to the country, and the most repugnant to the feelings of the people. Even with a responsible ministry, an attempt might be made to keep a party in power long after it had forfeited the confidence of the lower house. For such a violation of the constitution, a resort to this extreme remedy would be justifiable. But in general, the remedy is of too extreme and violent a nature to be resorted to in any but extreme cases; and the country will submit to very serious evils and oppression rather than encounter the mischief which a stoppage of supplies must inevitably carry in its train.
A legislature having the interests of the country in its keeping, without in any degree undervaluing the executive evils to be opposed and if possible removed, would find itself compelled to balance one set of evils against the other; and in a vast number of instances, the balance of evil being found on the side of the remedy, the remedy would not be resorted to; misgovernment, even in the face of this power over the public purse, could therefore safely be carried on with perfect impunity. An irresponsible executive would [25] speculate upon this indisposition to resort to the extreme remedy, and would soon acquire great practical skill in carrying misgovernment to a point stopping short of that degree of oppression which would provoke a resort to the remedy. Sometimes a government would risk the consequences, and speculate largely on the endurance of the people. This was the case in this colony on the subject of transportation. The executive, believing itself secure of the support of the Secretary of State; having no sympathies with the feelings of the people on that question; and being under no responsibility to the representatives, continued to maintain transportation, and even to press its continuance, against the unanimous wish of the representatives. The theory that the Australian executives would be slow to provoke a stoppage of supplies, and would not press oppression beyond the point of endurance, presupposes the existence of a degree of calm and sober judgment which may not always exist. The operation of this supposed dread is, in practice, reduced almost to a nullity so long as the executive regards itself—not as the ministry of a free people, but as the servant of home government.
Even if the remedy of stopping supplies were perfectly efficient, and could be resorted to with evil only to the wrong doers, and not to their victims the public, there would still remain a fallacy in considering the misgovernment of an irresponsible executive as no evil, merely because it could be put a stop to by the remedy. The Jesuits bark is said to be specific in all cases of intermittent fever: is the ague no evil because we can relieve and finally stop its paroxisms by the exhibition of quinine?
Let us look a little closely at its nature, and enquire upon whom the evil consequences of the remedy fall. It may be safely and broadly asserted that the evils incidental to the remedy fall principally on the public at large—the victims of the acts of misgovernment to be remedied, and not upon the wrong doers. The framers of the Australian Constitutional Act seem to have been well aware that in their attempt to unite a representative legislature with a despotic executive—a pleasant compound of the English and Russian forms of government—they were establishing a form of constitution in which the stoppage of supplies would be almost inevitable. They knew that in Canada, before the introduction of a responsible ministry, the stoppage of supplies and a species of impeachment were of constant occurrence, whereas, since the establishment of a constitutional ministry, the government of Canada, and indeed those of all. [Footnote: His Grace the Duke of Newcastle has just extended the boon to Newfoundland.] the British North American colonies have worked as smoothly as that of Great Britain.
But having determined to adopt a form of Government which was almost certain to produce some of the results in Australia which [26] an irresponsible executive had done in Canada; they sagaciously removed from the controul of the legislatures the salaries of most of the persons likely to become obnoxious, leaving to the councils little more than the power of inflicting evil on their own constituents and on the minor officers of the Government who were not implicated in the policy of the Government, further than being occasionally asked to go to the poll—and we know what asking means in such a case—to vote against some popular candidate.
It is true that the great increase of revenue and expenditure, since the introduction of the new Australian constitutions has had the effect of nullifying the scheme of the framers of the Imperial Act, but that could not be contemplated at the time. The schedules then formed a large proportion of the revenue. But they were not all. The customs department was not then under the controul of the local government. The survey department was kept up without any legislative controul, by making it a charge on the territorial revenue. The several Governors moreover had great power of placing other expenses as a charge on that branch of revenue. So that deducting all that was removed from legislative controul, the legislatures of the Australian colonies, by “exercising the constitutional right of stopping supplies” could do little more than destroy the police, stop postal communication, and suspend public works.
In thus pointing out the inadequacy of the power of stopping supplies as a substitute for a responsible ministry, let it not be supposed that this constitutional function of a representative legislature ought to be disregarded. It has been justly deemed by our ablest constitutional writers, one of the principal safeguards of public liberty. Undoubtedly it is a power which should never be given up—indeed being inseparable from the function of granting it cannot be given up ; but the executive ought certainly to be placed on such a footing in the Australian colonies, as that the right in question should be one of the dormant safeguards of liberty, never to be aroused to action. With good government it never will be exercised, and even with bad government its exercise will, for the reasons already stated, be extremely rare. Its exercise is indeed only justifiable in cases of great oppression, or to force a great constitutional reform against an unwilling executive.
No one can doubt that the attempt to force the continuance of transportation upon the unwilling legislature of this colony, against the indignant remonstrance of all the Australian colonies, was a just occasion on which to exercise the right; but it must be equally clear that the prudent and cautious manner in which the council showed its determination to resort to the extreme measure, yet still delayed the consummation by voting instalments, was most wise. No one can doubt that the general action of the Australian legislatures had an important and almost immediate effect on the minds of her Majesty’s ministers. There is reason to believe that the resolutions of [27] the first session of the Legislative Council of Van Diemen’s Land had not been one month in the hands of the Secretary of State, before he perceived the impossibility of carrying on transportation concurrently with representative institutions, and had determined to put an end to the former. It was accordingly mentioned in the Queen’s speech. The Duke of Newcastle has himself stated that transportation was put an end to in deference to the expressed wishes of the colonists. His grace could not fail to perceive that the conflict between the executive and the legislature which must have ensued had the prayer of the legislative council been refused, was such as a prudent statesman would hesitate to provoke; the more especially as in the other colonies the issue would have been, not as in Tasmania between the local executive and the representatives of the people, but between the local government supported by the people and their representatives on the one side, and the Imperial government on the other. The moderation of the legislature of this colony has been fully appreciated in the Mother Country; let us trust that the readiness of three ministers in succession—for to Lord John Russell’s statesmanlike perspicacity the people of Australia owe the first suggestion that transportation ought to cease—to fulfil the desires of the people’s representative in these colonies, will be no less duly appreciated than gratefully acknowledged.
In conclusion, instead of regarding the stoppage of supplies as an effectual remedy for every act of misgovernment, the necessary evils inseparable from a resort to this questionable remedy should be regarded as a strong argument against that form of government which is perpetually calling for its exercise. With a despotic executive this violent and painful remedy may occasionally be resorted to. In cases of pressing necessity the people will readily consent to the sacrifices incidental to the resort thereto. But while they acknowledge the necessity, they will be kept in continual alarm lest their representatives should be driven thereto. It was so in Canada under the old system; but with a responsible ministry the danger is wholly removed. The power, it is true, remains, and will always remain, as a great constitutional beacon; yet, when once responsible ministries shall have been established in the Australian colonies, no more will be heard of stopping supplies than is now heard in England or in Canada. The stopping of supplies is at best but a rude and clumsy remedy for evils—often of very serious magnitude,—which a responsible ministry would wholly prevent. Now, prevention is better than cure.
CHAPTER IV.
Some Objections Answered.
The principal objections urged against the adoption of the principle of the English constitution now under notice are—
1. That the Australian colonies are not ripe for a responsible ministry.
2. That the Australian colonies do not furnish a sufficiently numerous body of men who have been trained to or are fitted for an official career.
3. That the Australian colonies, taking into consideration their present limited population, do not possess a class of men in sufficiently affluent circumstances to enable them to afford to accept a precarious office.
1. That the Australian colonies are not ripe for a responsible ministry is a mere gratuitous assertion without proof, which is abundantly met by the counter-assertion that they are ripe. They in whose mouths the assertion is most frequently heard probably attach no very precise or definite meaning to the word ripe. It is in truth one of those vague generalities with which the political sophist seeks to set aside discussion and dispense with reason. The only questions worth consideration are: is that monstrous anomaly—the union of a despotic executive with a representative legislature—an evil; and if so, is not the introduction of a responsible ministry the appropriate and effectual constitutional remedy?
Every Englishman acquainted with the history of his country is aware that anarchy prevailed in England, almost as the normal condition of the country, before the ministry became responsible to the commons; whereas a well-working government has prevailed ever since. It has been also shown that in Canada the introduction of a responsible ministry acted almost like magic in converting what has been called a constituted anarchy into political and social order, and a discontented and rebellious, into a contented happy and loyal [29] people. Transportation being now happily out of the path, these colonies have not to complain of accumulated political mischiefs at all to be compared with those which drove Canada into rebellion. The official bodies of these colonies have never organized themselves and their adherents into a strong dominant party as the ruling class did in Canada. They seem not to have thought of anything like union. The newness of these colonies—ranging from seventy to eighteen years,—moreover, has not been favourable to such an organization.
But although it would be a gross exaggeration to say that the Australian colonies have experienced anything like that accumulation of abuses which prevailed in Canada before the introduction of Lord Durham’s salutary reform, the power of working mischief undoubtedly exists. There is the same antagonism amounting at times to hostility to the people—the same unsympathising character in the executive. Not that it is to be supposed that evil is done for evil sake; but in governments, constituted as those of Australia are, the executive and the legislature have a strong tendency to regard each other as natural enemies. The executive on the one hand, finding their measures often opposed by the legislature, soon acquire the habit of regarding all that the representees desire as something to be opposed; whilst the representatives on the other hand are not free from a corresponding feeling, and thus a wholesome co-operation for the public good becomes a matter of extreme difficulty. Why should not the same principle which has proved so salutary in promoting harmony wherever it has been tried, fail in efficacy for the first time in Australia? The mere logical inference is decidedly in favour of the advocates of a constitutional ministry, and they who think otherwise are bound to show a reason for their faith, and cannot rest their case on the bare assertion of unripeness. Our case is simply this;—that a responsible ministry has succeeded wherever it has been tried, whereas the attempt to unite the antagonistic principles of despotism and representation is, and ever must be, a failure. As to the “unripe” argument, it will be time to answer it when they who resort to it condescend to explain what they really mean by it. We were unripe for representation,—we were unripe for the cessation of transportation, we are unripe for each and every reform that can be proposed; but somehow or other, at the precise moment that each measure of reform has been adopted, ripeness has at once accompanied it.
2. The next argument which we are called upon to notice was made considerable use of in Canada when the question of Responsible Government was under discussion, and has not been neglected in Australia. In Canada, from the extent of the population, and the completely organized state of a comparatively old society, it had scarcely any foundation; here it has just enough show of reason to require an answer. The argument asserts the scarcity, nay, almost [30] total absence of a body of men, trained to, or fitted for the higher offices. This statement really amounts to very little more than the self-laudatory assertion that the present incumbents of office have no equals out of the official ranks. But this statement is not correct, inasmuch as the crown has of late years sought and even found some of its most efficient public servants among men originally unconnected with office. Invidious comparisons between individual and individual have been carefully avoided in these pages. The terms in which public officers have been spoken of have been as general as could possibly be resorted to, with due regard to clearness of conception, and individuals are now only alluded to for the purpose of showing, that the very men recently resorted to by the crown to fill high office, were, in fact, furnished by the colonies. To begin with the Tasmanian Government. The Attorney (late Solicitor) General is certainly not the least efficient member of the Government. Whether we regard him in his place in the Supreme Court, or on the official bench in the legislature, he appears as one of the most efficient public servants in all the Australian colonies. Where did the government find him? Not among those especially trained to official life,— not sent out by the Secretary of State as a ready-formed or heaven-born minister; but a member of a respectable Colonial family, carefully trained in his profession; and steadily making his way at the local bar. He was in fact furnished by the colony.
The mere institution of a representative legislature must of itself have a marked tendency to bring forward young men, ambitious of honorable distinction in the country of their birth or of their adoption. Indeed it would not be difficult to point out some men whoso very character and pursuits have been already changed by the opening prospect of an honorable and useful career. How much more conspicuous would this feature be, if official rank and station could, as in England, be won by an exhibition of ability, industry, and administrative capacity.
In the description of the official bench of the Victoria council the Attorney-General and the late Auditor were named as among the most efficient officers of that government. Where were they picked up? The Attorney-General was found just as our Solicitor-General was found, making his way steadily and progressively at the colonial bar. These men attained their position precisely in the way that Sir Alexander Cockburn became Attorney-General in England, and as they would have done under a responsible colonial ministry. The Attorneys-General of Victoria and Tasmania were in fact just the men that a leader in the council who had been “sent for” to form a local ministry would have offered the highest law offices; or, if they had taken the political rather than the legal line, they would perhaps have been themselves sent for in the first instance to make up a ministry. Now both were furnished by the colony. The late Auditor of Port Phillip was also a settler; the [31] present Colonial Secretary of that colony was a squatter and sheep farmer, and only underwent the moulting process of a voyage to England. Mr Justice Barry, now acting Chief Justice of Victoria, earned his seat on the colonial bench in just the same way as our judges do in England—by first making his way at the bar. Ho too was therefore furnished by the colony. In short, the several representatives of the Crown now find it wise and prudent sometimes to resort to the very men who would form part of the ministry, if the executive were made responsible to the commons; and where they have resorted to any other class, the result has been far from happy. Thus the colonies have furnished several very fitting men, who, under adverse circumstances, have literally forced themselves upon the notice of the several governments, and it is not too much to say, that they have proved at least as efficient as those who have been chosen out of the officially trained class, or who have been sent from the Mother Country either with office or with “strong recommendations to the Governor.” If the highest offices, as in fact they now nearly all are, are open, and are understood to be open to every man in the colony who can show himself worthy to fill the same, the colonies will become more attractive to young Englishmen of education, talents, and honourable ambition. The higher branches of education in the colonies would be more promoted, and more would be desirous of obtaining proficiency at schools and colleges, if such proficiency were as useful in the world as they are in England. Parents would go to more expense in educating their sons, if the honours and rewards which education secures in England were open to the ambitious youth of the colonies. The opening of the colonial bench to those who attain distinction at the local bar, the introduction of representative legislatures, and the adoption of a responsible ministry, taken together, would act as a most powerful stimulus to the acquisition of official aptitude of all kinds.
3. The argument, drawn from the want of affluent circumstances in any very large class of the population may be soon disposed of. It may be admitted that there is nothing in the colonies at all to be compared with the great territorial manufacturing and mercantile wealth of England; but taking into consideration the more moderate colonial standard, all these colonies furnish a very large number of families quite wealthy enough to train their sons up to a very high standard, and afford them aid while they are making their way at the bar, in other professions, and in the legislature. It must not be forgotten that up to a very recent period the only source of distinction was a profuse and ostentatious expenditure. Wealth was therefore all in all. But men are now beginning to have higher aspirations, and these will be gradually enlarged as our colonial constitutions become more fully developed. We are really beginning to look with some respect on a fair and well-earned professional [32] reputation, and men are actually to be found who are willing to forego a life of inglorious ease for the sake of distinction at the bar or in the senate. If it should however be found that the precariousness of the tenure of office deterred some efficient men from seeking the same, it is quite open to the colonies or any one of them to adopt an expedient which has been resorted to in England. There is an act of parliament which gives pensions to retired Secretaries and Under Secretaries of State, Chancellors of the Exchequer, and others—with the single condition, that not more than a limited number shall receive pensions at one and the same time. Thus the Australian legislatures might pass an act providing that after a certain length of service all persons who had held certain specified ministerial offices should receive a certain moderate pension, but that not more than two persons should receive the pension attached to the same office at one and the same time. In point of fact, it would seldom happen that more than one person would draw the pension attached to each specified office, and the pension would be vacated on the officer’s return to power with his party.
It need scarcely be said that such of the present officers of the several colonies as failed to keep office under a responsible ministry should be compensated by a pension according to their length of service. Many no doubt would obtain seats in the legislature, and would form part of the new ministries. It is to be hoped that an honorable ambition is not to be extinguished by the pension above contemplated, and that the best men who have held office under the old system will acquire seats in the councils or assemblies, and compete for office under the new. This was the case in Canada, where the old grievances were far greater, and the official body more identified with them than they are here; so that it will probably be more extensively the case here. It would not be difficult to name men in every one of these colonies now in office, whose position is so far independent of mere favour, and the result of their own talents as to enable them to disconnect themselves from the present obnoxious features of official life and assume that place in the councils of their country which their abilities, enhanced by their experience, will fully entitle them to. The mere fact that their position has been one of subordination and obedience, will save many from any considerable portion of the obloquy attached to obnoxious measures. In many instances their political sins are comparatively trifling—their laborious services to their respective colonies most praiseworthy. Let the recollection of those sins die with the odious system really chargeable with them; let the services alone be remembered.
[33]
CHAPTER V.
Prospects and Results.
It will have been collected from the foregoing pages, that there exist in the Australian Colonies but few impediments to the introduction of responsible ministries. The prospect indeed is in the highest degree encouraging to those who arc anxious for as full and complete an adoption of the principles of the British constitution as the circumstances of these colonies will admit. If the measure had been tried only in Canada, it would have been open to objection—that what had been found to succeed in a colony with a population of a million and a half, might still be inapplicable to colonies, the population of which ranged from two hundred thousand down to seventy thousand. But it has been found quite as productive of benefit in Prince Edward’s Island, with its little parliament of two chambers, and its population of less than fifty thousand, as in the great and flourishing colony in which it was first tried. It is therefore no longer an experiment.
Lord Grey speaks of the measure in his recent work on the colonies in terms of approbation. His successor Sir John Pakington, the promoter of the extremely liberal but somewhat complex constitution of New Zealand, is understood to be favourable to it. His Grace the Duke of Newcastle has practically evinced his approval of it, by very recently conferring the boon on Newfoundland—a colony in which party politics, based in a great degree upon religious differences, ran higher than in any other of the British possessions abroad. In England indeed there seems to be no difference of opinion on the subject, among those statesmen and public men who have given any attention to the affairs of the colonies; and it is upon the calm and deliberate opinion of such men that those who have not busied themselves much about colonial affairs will rely.
Nor is it merely on the question of responsible ministries for all the colonies, that the almost universal opinion of public men in [34] England is now so favourable to constitutional government in the colonies. The complete destruction of colonial monopolies by the abandonment of discriminating duties; the repeal of the old navigation laws; the discontinuance of the practice of supplying the colonies with nearly all public officers, down to those of even a very subordinate rank, from home; and the opening of the judicial bench to a great extent to the local bar; have left to the ruling class in England but little, if any, interest in maintaining that vexatious amount of Imperial controul, which formerly carried interference into the minutest affairs of the colonies. They who think that the colonial connexion is desirable, have in truth some ground for fearing that not a few public men are now disposed to bend the bow too much the other way: that, in short, an extreme apathy, a half-lazy half-culpable indifference is growing up, respecting the very connexion itself. There is however a different, and we venture to think a far more sound state of opinion among those statesmen who are best acquainted with colonial affairs, which seems much more in conformity with the state of opinion in the colonies; namely, that the connexion between the colony and the parent state is, or may at all events be made, advantageous to both. That to this end, it should be entirely and completely stripped of all interference with the internal affairs of the colonies, and should be reduced within the very narrowest limits which are consistent with the connexion itself. The general opinion of statesmen of this class is, that the interference of the Imperial Government should be confined to subjects and questions which concern the empire at large, and that these are perfectly susceptible of distinct enumeration and definition. Colonies, as such, for instance, can have no peace or war distinct from the Imperial Government. They may be, as the North American colonies were up to 1759, the original cause and principal seat of war. The English and French colonies no doubt played an important part in that war, but the question of war and peace rested with the parent states, and conquests made in such cases, after the date of any treaty of peace, and before notice, have been invariably restored on both sides. Colonies can have no foreign relations of any kind, and no diplomacy. Beyond these and some other subjects, strictly reserved from colonial interference, the general impression —rapidly growing into universality—is, that the Home Government can never intermeddle with the purely local and internal affairs of the colonies, without extreme trouble and vexation to itself and to Parliament, and with every chance—nay, almost certainty, of mischief to the colonies. And this be it remembered is not the mere closet theory of the political philosopher, but is the practical conclusion drawn from a most successful experiment, which has now been working for some years with the most happy results, in an important, wealthy, and populous group of colonies. Indeed to some extent it receives illustration from those colonies in which the contrast [35] between the amount of Imperial interference formerly and at present practised is very striking, and in which every extension of the principle of non-interference has been productive of beneficial results. Governed
———-“with chains so light
twere not worth while to break them”
the colonial connexion, will in a very few years, be reduced to little more than is expressed in a very happy phrase, attributed to a distinguished English statesman, namely, “a common citizenship and a common allegiance,” in which case it seems almost impossible to anticipate that the connexion should be other than practically permanent.
The adoption of responsible ministries for these colonies may therefore be regarded simply as a question of time; and that too not merely whether they shall be adopted at once or at some remote and indefinite period, but whether they ought to accompany or anticipate the completion of the new constitutions.
If the question had not been raised in the colonies as a measure proper to be introduced as part of the new constitutional arrangements, it is not at all improbable, that the high favour with which it is regarded by English statesmen, would have caused the proposal to emanate from home, with the single condition that a fair and reasonable compensation should be given to such public officers as found themselves compelled to retire. There is no reason to believe that the proposal will be less palatable to the Secretary of State, or to ministers generally, because it has emanated from the colonies, and has moreover been placed by the framers of the several constitutions on a proper footing and viewed in a proper light. Except in the bill framed in South Australia, where it is provided that certain public officers shall have seats in either house of the colonial parliament, the framers of the other constitutions have contented themselves by introducing certain provisions, having for their object to facilitate the introduction of responsible ministries, and above all to anticipate the condition which ministers would be sure to impose. In this the legal and constitutional course has been adopted. Lord Durham, who had the advantage of very able legal assistance, pointed out that an enactment would be unnecessary and indeed improper. No local enactment on such a subject would be binding on the Crown. Its disallowance would be at once advised by the legal adviser of the Colonial Office, or the Law Officers of the Crown. The selection of the public servants is a matter of undoubted prerogative. The power of appointing public officers is already delegated to the Governors of colonies by their commissions, which are instruments under the Great Seal, and a mere instruction under the Signet and Sign Manual will be amply sufficient to effect the purpose.
While these pages were passing through the press, intelligence has been received that a responsible ministry has been adopted by [36] the general Government in New Zealand, [Footnote: The European Population of New Zealand, certainly does not reach 35,000, and probably does not exceed 31,000.] as well as by the several provincial Governments. It seems that the general assembly, convened at Auckland, the capital of the Northern Province, addressed the officer administering the Government—Colonel Wynyard—praying him to choose the principal officers of his government out of the majority of the assembly. Colonel Wynyard at once complied with their request, and the assembly unanimously agreed to an address of thanks for his prompt attention to their wishes. At some stage of the proceedings there was a motion to delay the measure till the pleasure of the Queen, or the concurrence of the Secretary of State could be made known, but it was lost by a majority of 25 to 3.
Now, assuming that some provision is made, or is intended to be made, for the outgoing officers, there seems no reason why her Majesty should be advised to disapprove of the above mode of introducing the measure. The choice of officers is within the power of the Governor or officer administering the Government. There is nothing in the nature of that power to preclude him from following a certain principle in the exercise of the same. An order or instruction from her Majesty seems only necessary, where the Governor is unwilling to introduce the reform without it. Added to the successful working of responsible ministries in the North American colonies, the recent adoption of the principle, not merely by the general Government, but by the several provincial Governments of New Zealand—with populations ranging from ten down to three thousand or less—serves to put the effete system of irresponsible executives more completely in the wrong.
It may now be useful to mention a few of the results likely to flow from a responsible ministry, which have either not been touched upon at all, or have only been incidentally alluded tp in the foregoing chapters.
[[36]] Without a strong executive a perfectly efficient government can have no existence. But an irresponsible government must always be viewed with jealousy and suspicion, by a representative legislature and by the people whom they represent. Under the influence of this feeling, not only does the executive derive no support from the legislature or from general opinion, but constant efforts are resorted to in order to weaken it. The weakening of the executive is obviously a mere defensive expedient to mitigate the evils of irresponsibility. Let responsibility be introduced, and legislative support—which must include the support of the majority of the constituencies—will be at once freely given to the executive. This constitutes a strong executive. With a ministry that can only hold office so long as it can command a majority in the [37] house—with the power of dissolving the provincial parliament, if there be reason to believe the lower house does not faithfully represent the constituencies—there seems no place for that jealousy, suspicion, and constant desire to weaken and damage the executive, which is, and ever has been so conspicuous in all colonies where, but only so long as, irresponsibility has prevailed.
Another result, which may reasonably be anticipated, will be the improved tone of party contention. Party is inseperable from all free governments. Without going very deeply into the matter—for that would be out of place here—there will always be the party desirous of progressive changes, which they believe to be necessary to the welfare of the people; and the party disposed to resist such changes, and keep things as nearly as possible as they are. In England the one party is called liberals or reformers—the other party conservatives, and their types are to be found wherever the British constitution has been even imperfectly imitated. The liberal party must not however arrogate to themselves a monopoly of usefulness. The constitutional function of conservatism is to resist inconsiderate innovation, and the useful legislation of the last ten or twelve years—useful and salutary beyond all previous example—is the practical result of the party conflicts, which the debates in both houses of parliament disclose. Scenes of discord no doubt occur, but they are not the normal condition of debate, which is usually earnest, argumentative, and pertinent to the matter in hand. In all numerous deliberative assemblies, the even tenour of debate is occasionally liable to be interrupted by personal acrimony. But where one party, and that the party of the minority, is maintained in power—-not by its intrinsic strength, but by the strong hand of the Home Government against the consent of, and on principles adverse to, the majority—mutual recrimination and personal acrimony become the common weapons of attack and defence. No one can doubt that the element of responsibility, imposed upon the party in power, would tend to make that party more circumspect in its demeanour and more courteous in its language towards its opponents; whilst, as a natural consequence, the tone of opposition would be softened. In the House of Commons—in spite of occasional episodes of a contrary character—there is a certain dignity and self-respect in the aspect and demeanour of parties, which generates respect towards each other. Though Lord Derby and Lord John Russell profess different political principles, it is probable that neither of those able statesmen doubts, or has ever doubted, that his adversary has the good of his country at heart. In these colonies parties seldom give each other credit for a sincere desire to promote the welfare of the people. Under responsible ministries, parties will have no other hope of succeeding to power, except by a constant and earnest attention to the interests of the constituencies and the country at large, and that being a matter of notoriety to all, the sincerity of the end—in spite even of the [38] ordinary party warfare—will come to be assumed, and the inapplicability of the means adopted by each party will alone be impugned. The party accusation now is: “you are deliberately and wilfully betraying the best interests of the country”—the party accusation by-and-by will be—“the measures which you propose will only injure the interests of the country, which we all desire to promote.”
The uncharitable spirit which is above described as pervading parties in the legislature, is unfortunately not always confined within the walls of the several councils. Even a cursory perusal of the parliamentary blue books for the last few years will show, that the tone of the despatches from the head of the executive to the Secretary of State is occasionally marked by party acrimony towards the opponents of the favourite policy of the executive, and towards the popular representatives. But sweeping denunciations of political opponents really meets with little or no sympathy at home; and when we contrast with these the courteous, and at the same time dignified, tone of a Secretary of State’s despatch, we are sometimes tempted to entertain a suspicion, that it was intended as a lesson to the Governor to whom it was addressed.
Nor is the language which has occasionally been indulged in by members of the legislature towards the head of the executive less reprehensible. The attacks of the despatch have been answered by the diatribes of debate, and the feeling of animosity thereby generated between the head of the executive and the leading members of the legislature, are not easily allayed. No one who has not been drawn into the vortex of these angry recriminations, can do otherwise than deplore their occurrence.
The occasional tone of despatches—many instances of which the reader will recollect for himself—as well as the recriminations of the members assailed, are only briefly and gently alluded to, for the purpose of pointing out how much more becoming to the head of an executive would be that position of “dignified neutrality,” which Lord Elgin so pointedly described as being incidental to the functions of a Governor with a responsible ministry. Party animosity would be exhausted in the contentions of the legislature. The Governor himself would stand perfectly indifferent between parties, merely giving his confidence and support to that party which could secure the decided and permanent confidence of the lower house, and consequently of the constituencies. It is to be presumed that there are but few persons who may be entrusted with the confidence of their Sovereign, who would not prefer the improved position and influence which a Governor would enjoy as constitutional representative of the Crown, which he would become in fact, as he is now, merely in name, instead of being little more than the mere head of a party.
It is almost unnecessary to point out that the position of the Secretary of State would be as much improved as that of the [39] Governors of the colonies. At present every executive act in the colonies is necessarily reported to him, because in theory he is the minister by whose authority, and under whoso instructions, the Governors are presumed to act. The most trifling determinations of the government are communicated to him, often in magniloquent and didactic despatches. These matters he is presumed to enter into, as though they were of the greatest moment to the country. The answers to many of these are of course brief and formal, and after a time give little real trouble to the Secretary of State, though they give abundance of profitless occupation to “the office,” But that which really is most troublesome to that minister is, that every dispute between the executive and the party complaining is referred to him. These keep him, and all under him, in constant and most irksome employment. Nor is this all. It is quite competent to the party complaining to get some member of parliament to move for papers. Formerly, discussion and all trouble to the house, was saved by resisting such motions. But at the present day, as we have seen, publicity is more in accordance with the practice of the Government. Hence a parliamentary debate may be brought about by a purely local dispute, often not involving any principle, and not intrinsically worth the time it occupies.
When it shall be understood that the Home Government has ceased to interfere with the local affairs of the colonies, and that they have ministries responsible to their own commons respectively, every man who has a real or fancied grievance will naturally turn to the local government and the local legislature, and if inadvertently he should appeal to the Secretary of State, he will be referred back to his own government, as alone capable of understanding and deciding on the merits of his case, and as fully competent to settle the dispute on the spot. No doubt there will remain some cases in which a right of appeal to the Secretary of State will remain to the aggrieved party, cases in which non-interference would be injustice, but they will be of rare occurrence.
END
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