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The Pamphlet Collection of Sir Robert Stout: Volume 80a

The Secretary of State for the Colonies to Governor Sir John Young

The Secretary of State for the Colonies to Governor Sir John Young.

Sir,

Downing-street,

I have the honour to acknowledge the receipt of your Despatch, No. 51, of the 19th July, forwarding a statement by Sir William Burton of the circumstances which led to his resignation of the office of President of the Legislative Council of New South Wales, and also explaining to me your view of the public questions to which this statement refers.

page 75

You will already have learnt from my Despatch of the 26th of July that, while making every allowance for the difficulties in which you were placed, I was unable to approve the creation of 21 Legislative Councillors for, the purpose of carrying a Ministerial measure through the Council. With regard to the other questions raised in Sir William Burton's letter, it does not appear to me necessary or desirable to say more than that I see no reason to doubt that the President and Members of the late Legislative Council were actuated by a sense of duty in the proceedings which they adopted during the last Session of the Parliament of New South Wales,

I have, &c. (signed) Newcastle,

Governor Sir John Young to the Secretary of State for the Colonies.

Sir,

Government House, Sydney,

In accordance with the request of Mr. William Forster, late Colonial Secretary, I have the honour to forward the letter* in which he tendered the resignation of his office, for the reasons therein stated.

It will only be necessary, I think, to give an outline by way of narrative of the circumstances which led to and accompanied his resignation; for although they bear on the manner in which the issue of the question was brought about, they still have little to do with the question itself.

About a fortnight previous to the meeting of the present Parliament, Mr. Martin, the Premier, mentioned to me his wish to nominate two gentlemen to the Legislative Council. I at once stated the objections which occurred to me, and which I will presently refer to, and after some conversation I parted with Mr. Martin under the impression that the appointments would not be seriously pressed.

About a week later, however, it appeared that Mr. Forster was not satisfied, but insisted on the appointments, and on my definite refusal, his letter of 23rd January 1865, was handed to me.

It will be observed that, in insisting, Mr. Forster had not the support of his colleagues: they had yielded to the gravity of the objections which I urged. I now pass on to the grounds on which my refusal was based.

The Legislative Council at the time consisted of 32 Members, three being absent in England, one on his passage out from England, and one on the eve of departure from the Colony, so that there were present in the Colony 27 Members available for service. Nine of this number, i.e., one-third, had been appointed since the accession to office of Mr. Martin's Ministry, in October 1863. The minimum number of Members for the Legislative Council prescribed by the Constitution Act is 21. It appeared to me that the creation of nine new members in so short a period was a large addition to the Legislative Council, and would have been so considered even with reference to so large a body as the House of Lords in England; how much greater, then, to so limited a Chamber as the Legislative Council of this Colony.

But was there any imperative reason assigned or existing for the proposed addition or for these appointments? No attempt was made to justify the addition on the ground of public policy or public exigency.

It was not alleged that the due representation of political parties or of any great interest required it. No special or public reason was adduced in its favour. The construction and actual state of the Council afforded no such reason.

As to the gentlemen proposed I desire to say very little, because my refusal was not based on any real or supposed unfitness on their part, but I was not pressed to appoint either of them on the grounds of any peculiar claim or of any public service.

The position in which the Ministry stood at the time that these appointments were proposed was another consideration which had weight with me.

In October 1864, they had met Parliament. In a few days after the Minister for Works had resigned, an Amendment to the Address in the form of a Vote of want of confidence was carried. A dissolution was asked for, and I gave my consent. I could not but observe that the general result of the elections appeared to be adverse to their hopes. The vacancy in the office of Ministers of Works had not been filled, and the Finance Minister had failed to secure a seat.

The Ministry were, as far as it was permitted me to judge, in extremis, and so it proved; for, on the day the new Parliament was opened, Mr. Forster's resignation was announced, and an hour after an Amendment on the Address, in the form of a Vote of want of confidence, was carried against the Ministry by a majority of 42 to 14.

For the reasons I have stated, I felt that at the time when these appointments were suggested I might not unreasonably have urged that the action of the Ministry should be limited to the ordinary administration of the Government.

All Mr. Forster's colleagues appeared to feel the weight of ray arguments.

So far I have mentioned objections which apply only to the case in hand. I come now to more general considerations, which may be viewed as applying equally to this and to other future proceedings in reference to the Legislative Council.

page 76

By the Constitution Act, the number of Councillors is unlimited, subject only to a minimum of 21. But it needs no argument to prove that if every Minister determines to push his advice to the same issue as Mr. Forster, the dignity and usefulness of the Council would be destroyed. On Mr. Forster's principle every Ministry in turn might insist on any number of fresh appointments, to gratify their friends or to secure a majority. If the Governor refused they would resign, and he would in the end be left without the means of forming an Administration; while, if he yielded, there would soon be an end of the Upper House, or at least of its independence, or of any effect or utility which it might have as a deliberative body. Theoretically, in the written Constitution, there is no limit, but practically, to give life to the Constitution, there must be a limit.

Putting aside, therefore, exceptional cases and special exigencies, it appears to me that a limit ought to be observed; and, with a view to its observance, and, indeed, as the only mode that occurs to me of insuring such observance practically, weight should be allowed to attach to the opinion of the Governor as to any proposed increase of the Members, as well as to the propriety of individual appointments. Any increase of numbers should first be formally proposed, and sanctioned by the Governor, before the consideration of particular appointments is entered upon.

At both stages the Crown, or Governor acting in lieu thereof, should have a recognised independent discretion, and no offer of a seat should be made until it has been formally sanctioned by the Governor and Executive Council. The nominations to the Upper House ought not to be viewed as mere ordinary appointments, the refusal to sanction which might justly be considered an interference with proper ministerial action and responsibility.

It seems to me that, by the Constitution Act, Her Majesty's Government and the people of this Colony are entitled to hold the Governor responsible in the exercise of the power conferred on him for the preservation of the Legislative Council as an efficient branch of the Legislature.

But how can this end be attained unless successive Ministries consent to exercise moderation in pressing advice on this point, and recognise the power and responsibility of the Governor in giving or withholding assent?

At the time of the reconstruction of the Legislative Council in 1861 these difficulties were much and anxiously considered, and an effort was made to suggest what might be, subject to exceptional cases, a convenient limitation to the number of the Upper House, to which Mr. Forster takes exception. He appears to misapprehend what took place when he says that a limit was arbitrarily fixed by me to the number of the Legislative Council in concert with his predecessors.

At the time of the reconstruction of the Council I consulted the leaders of the Liberal Party on the one hand, that is, the Ministers then in office, and also with their cognizance I availed myself of the advice of gentlemen of social standing and of leading political position in other sections. In fact, I called into counsel, under the auspices of Mr. Wentworth, the framer of the Constitution Act, several gentlemen of various political opinions who were at that time prominent in Parliament, or in possession of much general influence.

It was understood that Mr. Wentworth was to be the President of the new Legislative Council, and I appointed him to the office as soon as it was formed. After many interviews and much deliberation it was the general opinion of these gentlemen that 27 Members might, with advantage, be considered a convenient usual limit of the Council, and with this view I concurred.

Mr. Cowper and his colleagues recommended that seats should, in the first instance, be offered to 27 gentlemen accordingly. Several declined on various grounds, and eventually 23 only were gazetted. That number was not subsequently augmented beyond 26—during that Administration, which lasted nearly two and a half years afterwards.

Of course it was never contemplated that the Constitution Act could be set aside, or that any succeeding Ministry could be bound by the opinion of their predecessors, although by common assent the convenience of some usual limit might be recognised; neither was it ever contemplated that the Governor could relieve himself of responsibility, by giving beforehand his assent to any unvarying course of action. But I thought that what was then done might with advantage be referred to thereafter by myself and others, not as an absolute guide, but as giving the assistance of the opinion of able and impartial men, who were all equally anxious for the permanent stability of the Constitution.

The recollection of these circumstances weighed, I admit, with me to some extent in arriving at the conclusion that no further addition should be made to the number of the Legislative Council at that time. I thought it unwise, in the absence of any particular reason, to deviate from a course which I had then approved of, and which, if constantly pursued, might gradually be confirmed by usage, and serve to maintain the strength and usefulness of the Council.

Notwithstanding the general views I took of this matter, I showed my willingness to meet the wishes of Mr. Martin's Ministry by increasing the number of the Legislative Council to 27 actually present in the Colony.

I met the wishes of the Ministry, of course, so far as I conscientiously could do so.

Thus I have stated the reasons, both general and particular, which guided me in the performance of the duty and in the exercise of the power intrusted to me by the page 77 Constitution Act—reasons which I believe justify the course I have pursued. You will observe from Mr. Martin's letter to Mr. Forster, that the Ministry, with the exception of Mr. Forster, did not meet my refusal by the resignation of their offices.

I hardly feel called upon to notice Mr. Forster's charge of partiality. I am utterly unconscious of any such bias as he has attributed to me, and I deny that there is any foundation for this accusation, which he, and he alone, has so unjustifiably preferred. I read for the first time Mr. Forster's letter a few minutes before I attended a meeting of the Executive Council, and I at once appealed to the Ministers, all of whom, except Mr. Forster, were present, to state openly, in my presence, whether there was, in their judgment, any foundation for such an imputation. They, one and all, on the spot, assured me that they considered the charge unjustifiable and untenable. This disclaimer is repeated in the Premier's letter to Mr. Forster, and if further justification were necessary, I could rely on the verdict of public opinion which Mr. Forster's charge against me called forth, and which, having being contradicted by his colleagues, did not find a single voice of support in the Assembly, and was met with general approbation by the public press of all shades of opinion.

I feel, therefore, that I need do no more than record this, my protest, against an accusation so ignoble and unfounded.

In conclusion, I must add that the position which Mr. Forster has assumed is unfortunate in this respect—that it lessens the safety of the Upper House by seeking to establish the evil precedent that the refusal of the Governor to add to its numbers when urged on no public grounds, but merely for the satisfaction of a Minister or Ids private friends, may be considered as a legitimate ground for the abandonment of office. The right of a Minister to resign when his advice is not taken is unquestionable, but the right should be exercised in the public interest sparingly and upon sufficient cause.

I have reason, however, for hoping that no difficulties will arise on this question. I sincerely trust that such may be the case, and that the moderation and wisdom of the leading men in the various sections may induce them to exercise with a cautious sense of their responsibility the powers which the Constitution places in the hands of the holders of office for the time being.

I have, &c. (signed)

John Young.

The Secretary of State for the Colonies to Governor Sir John Young.

Sir,

Downing-street,

I have the honour to acknowledge the receipt of your Despatch, No. 14, of the 16th of February last, enclosing a letter of remonstrance from your late Colonial Secretary, Mr. W. Forster, against the course which you took in refusing to appoint two additional Members to the Legislative Council on the recommendation of your responsible advisers. The reasons which you give for this refusal appear to me sound and convincing; and I am glad to perceive that Mr. Forster's proceedings have not met with the approval of his colleagues.

I have, &c. (signed)

Edward Cardwell

Governor the Earl of Belmore to the Secretary of State for the Colonies.

My Lord Duke,

Government House, Sydney,

I have the honour to inform your Grace that I have, at the instance of my Responsible Advisers, appointed three additional Members to the Legislative Council.

2. The only reason for this addition is, as stated in the enclosed letter from the

Enclosure No. 1.

Attorney General, the difficulty-experienced in securing a quorum for the transaction of business, and on that ground alone I have sanctioned the increase

Enclosure No. 2.

.
3. As I have not been able to find any instructions on record making it necessary for me to refer to your Grace before taking this step, as it is an understood thing that, as a rule, no nomination to the Legislative Council is to be made during the Session of Parliament, and as Parliament is appointed to meet on the 13th proximo, I appointed, on the 28th instant, with the advice of the Executive Council, the following gentlemen to be Members of the Legislative Council, viz.:—
  • Frederick Matthew Darley, Esq., barrister-at-law;
  • John Richardson, Esq., formerly a Member of the Legislative Assembly; and Thomas Holt, Esq., formerly a Member of the Legislative Assembly, and some time Colonial Treasurer.'
page 78
4. Two death vacancies also have occurred during the recess; these I have filled up by the appointment of—
  • Henry Moore, Esq., a merchant, and the agent to the Peninsular and Oriental Steam Navigation Company; and
  • Alexander Park, Esq., a former Member of the Council before its reconstruction.

5. The Council, thus increased, now consists of 30 Members, being about two-thirds of its number prior to 1861.

6. I trust that what I have done will meet with your Grace's approval.

I have, &c. (signed)

Belmore.

Enclosures.

The Attorney General to Governor the Earl of Belmore.

My Lord,

Attorney General's Office,

When the first permanent nominations to seats in the Legislative Council were made by Sir John Young, an understanding was come to (as he informed me) between him and his then Executive Council that the number of Members should nor, as a rule, be allowed to exceed 27. The Constitution Act fixes a minimum number of 21, but there is no maximum; and, consequently, it is open_ to the Governor, with the advice of the Executive Council, to appoint as many Legislative Councillors as he may think expedient. When I went into office in 1863, my colleagues and myself acquiesced in the view taken by Sir John Young in this matter, and we did not press upon his Excellency to depart from the understanding already mentioned. The gentlemen who succeeded us in 1865 adhered to the same understanding, and no attempt, so far as I am aware, was made by them to act in opposition to it.

The experience of the last two Sessions, has, however, shown that, with so small a number as 27, it is very difficult to procure the requisite quorum to enable the House to proceed with its business. Many of the Members reside at considerable distances from Sydney, and cannot be expected to give that continuous attention to their legislative duties which residents in Sydney might render without much inconvenience. Under these circumstances, it has occurred to my colleagues and myself that it would greatly facilitate the dispatch of business in the Legislative Council if the number of Members were increased to 30, and we accordingly recommend that your Lordship will be pleased to sanction such increase.

I have, &c. (signed)

James Martin.

Governor the Earl of Belmore to The Attorney General.

Sir,

Government House, Sydney,

I have to acknowledge your letter of the 24th instant, recommending me to sanction an increase in the number of the Legislative Council from 27 to 30 Members.

I am aware of the reasons which led to the understanding between my predecessor and his succesive Executive Councils that the number of the Legislative Council should be limited to 27, and I fully admit the force of these reasons.

As, however, it now appears to be very difficult to procure the requisite quorum to enable the House to proceed with its business, and as such a state of things cannot but lead to public inconvenience, I am prepared to sanction, for the reason put forward in your letter, an increase of the number of the Legislative Council to a maximum of 30 Members.

I have, &c. (signed)

Belmore.

The Secretary of State for the Colonies to Governor the Earl of Belmore.

My Lord,

Downing-street,

I have to acknowledge the receipt of your Lordship's Despatch, No. 109, of the 29tli of September, reporting that on the recommendation of your Responsible Advisers you had appointed three additional Members to the Legislative Council.

Any increase of the number of the Legislative Council is likely to be used as a precedent for further additions, and is therefore to be regretted; but I see no cause for doubting that the reasons for the increase adduced on the present occasion are bona fide and sufficient.

At the sane time I should have been glad to have been assured that the addition was not in fact politically material as altering the balance in any important degree in favour of the Ministry by whom it was suggested by you.

I have, &c. (signed)

Granville.

page 79

Governor the Earl of Belmore to The Secretary of State for the Colonies.

My Lord,

Government House, Sydney,

I referred your Lordship's Despatch, No. 2, of the 18th December 1868, on the subject of the appointment of three additional Members of the Legislative Council by the advice of my late Government, to the present Prime Minister, with reference to its concluding paragraph.

2. Mr. Robertson has this day submitted to me the accompanying Paper on the general question of limiting the numbers of the Legislative Council, to which I beg to draw your Lordship's attention.

I have, &c. (signed)

Belmore.

(Enclosure.)

The Colonial Secretary to Governor the Earl of Belmore.

Memorandum.—Your Excellency's Memorandum accompanying the Despatch of the Right Honourable the Secretary of State for the Colonies, dated 18th December 1868, No. 2 (M. 2190, B), is marked "private"; and all that your Excellency therein appears to desire at my hands is, my concurrence in an assurance to Lord Granville, that the addition made by the late Ministry to the number of the Legislative Council, as then existing, was not in fact politically material as altering the balance in any important degree in favour of the Ministry by whom it was suggested to your Excellency; and I should, I beg to say, be most glad to concur in such assurance and make no further comment, did I not conceive that the Despatch was based on a misapprehension which it is very important in the true interests of this Colony that I should endeavour to remove.

I presume, from the tenour of His Lordship's Despatch, that he is under the impression that a maximum number of the Legislative Council has been defined or implied; and that the Responsible Ministers of your Excellency may not in their discretion advise your Excellency to exceed it. If such be his Lordship's meaning, I am compelled, with all deference for so high an authority, to say that this cannot be admitted by the Members of the present Administration of this Colony.

The 2nd section of the Act 17 Victoriae, No. 41, enacts that it shall be lawful for Her Majesty, by an Instrument under the Sign Manual, to authorise the Governor, with the advice of the Executive Council, in Her Majesty's name, by an Instrument or Instruments under the Great Seal, to summon to the said Legislative Council of the Colony such persons, not being fewer than 21, as the Governor and Executive Council shall think fit.

In the third paragraph of your Excellency's Instructions, to which I trust that I may be permitted to refer, attention is particularly drawn to the terms above quoted; and the paragraph ends with the following words, but without any intimation, implied or expressed, of a limit to the number of Members to be appointed by your Excellency with the advice of the Executive Council:—" We do, therefore, by these Our Instructions authorise you from time to time to summon to the said Legislative Council such persons as you and Our said Executive Council shall think fit"

It is thus, I submit to your Excellency, abundantly clear that the law fixes no limit to the number of the Legislative Council of the Colony, and that the determination beyond the legal minimum of 21 rests in your Excellency with the advice of your Ministers. There is no warrant in law for a contrary conclusion, and it follows, therefore, that it is to be hardly imagined that the Secretary of State for the Colonics would, unless under some misapprehension, have used the terms "increase the number of the Legislative Council," or expressed a regret that an addition has been made, or that it was likely to be used as a precedent for further additions. The fact is, that additions have been made from time to time, and no question has ever been raised as to the legality of such additions, or of the right of Ministers in their discretion to advise them. I think, therefore, that the Right Honourable the Secretary for the Colonies will scarcely deem it proper for him so to question or comment on the advice offered, or that may be offered by the constitutional Ministers of Her Majesty's Representative in a British colony having a Representative Assembly and Responsible Government, as to practically have the effect of nullifying without law in a material respect a most important constitutional principle, such as the right of extension of the Legislative Council. His Lordship will no doubt remember that even British Parliamentary Legislation "on any subject of exclusively internal concern "in any such Colony, has been pronounced, as a general rule, unconstitutional, and only to be exercised in extreme cases in which necessity at once creates and justifies the exception. Parliamentary Paper, 1839, No. 118, page 7:—May's Constitutional History of England, vol. 2, folio 371.

In the Colonial Debates during the passage of the Constitution Act (see "Sydney Morning Herald," 22 December 1853—an extract is enclosed), Mr. Went worth, who is page 80 the author of that Act, substantially advocated a nominee Upper House because of its flexible and expansive character, and he saw therein the safety of the Constitution. His remarkable words were, that an Elective Upper House would lead to a revolution; that it would control the Lower House, and trample on the rights of the people.

The recent "deadlock" in the neighbouring Colony of Victoria has shown some of the difficulties of a fixed number. With such a principle established, and with Members, like ours, holding their seats for life, our difficulties would not only be equal to those of Victoria with Members chosen under the elective principle and for a short term of years, but would be likely some tunc or other to overwhelm the Colony with anarchy and bloodshed. Mr. Wentworth was in favour of a nominee Upper House, which, he asserted, would give way rather than excite a revolution, and also because he felt assured that the Responsible Minister of the day would compel it to give way in such an exigency.

I may perhaps, in this view of the Constitution Act under which this Colony is governed, urge the right of any Ministry, having what they believe a great national measure to carry through the Legislative Council, to see in its importance, if obstructed therein, a reason to advise the Governor for the time being to summon such a number of additional Members as may secure the safety of the measure. His Excellency of course would possess as perfect a right to refuse to act upon such advice and to call other Advisers to his aid. Whether or not it would be proper in a Minister to advise so extreme a course, or in a Governor to refuse compliance therewith, would, I take it, depend on the justice and importance of the measure involved,—on the amount and length of continuance of the obstruction of the nominated Legislative Council, on the proportionate number and importance of the majority of the colonists demanding it, and on the depth and fervour of their determination in doing so. In other words, the wisdom of the course could only be determined by the effect which compliance or refusal would have on the prosperity of the Colony and the welfare and happiness of its people.

I desire, therefore, to convey to your Lordship, not only from myself, but from my Colleagues in the Government, that we would consider any action of ours, having a tendency, however remotely, to limit the number of the Legislative Council as at present constructed, as an unwarrantable abandonment of our duty as Ministers alike responsible to your Excellency, to the Parliament, and to the people of the Colony.

Colonial Secretary's Office, Sydney, (signed) John Robertson.

Extract from Mr. W.C. Wentworth's Speech on the Third Reading of the Constitution Bill. ("S. M. Herald," 22 December 1853.)

"With reference to the clamour which had been raised about the nominee Upper House being likely to override and undo all Constitutional Government, and to surrender all the power into the hands of the squatters,—the number of elected Members in the Lower House, which was to consist of no fewer than fifty-four members, would make it utterly impossible for such to be the case. A House so constituted would be, as it had always when occasion required it, proved itself to be, too powerful for the Upper House, and even for the Throne. A proof of this power had recently been exhibited in England; and many such proofs existed in earlier history. An Upper House had occasionally attempted to resist the popular will, but never determinately and with ultimate success, because the popular will was found to be irresistible, and an Upper House which would be obstinate in its resistance would surely be swept away. The reasons cited by the opponents of the nominee principle, in behalf of an elective Upper House as superior to a similar structure on the nominee principle, was its unexpansive and inflexible character; and for the very same reason he had been strenuous in his opposition to the elective principle prevailing in the Upper House. The erection of such a body would lead to a revolution. (Hear, hear.) It would control the Lower House, and could trample on the rights of the people. Therefore he was in favour of a nominated Upper House, which he felt assured would and must give way, rather than excite a revolution, and also because he felt assured that the responsible Minister of the day would compel it to give way in such an exigency. He was opposed to the principle of an elective Upper House on account of its inflexible and unexpansive character, an argument which, though used in its behalf, was fraught with the most dangerous character; and because he preferred the British Constitution, which had stood the test of ages, which had worked well, and had been found congenial to the feelings and sentiments of Englishmen. (Loud cheers.) It was because under such a Constitution Englishmen could live contentedly and securely, that he proposed giving such a Constitution to the Colony, and such an Upper Chamber to the Legislature; and he, therefore trusted the House would show their concurrence in his opinion by passing the third reading of the Bill by a large majority. (Loud and prolonged cheering.)

page 81

The Secretary of State for the Colonies to Governor the Earl of Belmore.

My Lord,

Downing-street,

I have the honour to acknowledge the receipt of your Despatch, No. 109, of the 14th of July, enclosing a Memorandum by Mr. Robertson on the subject of my Despatch, No. 2, of the 18th December last, relating to some additional appointments which had been made to the Legislative Council of New South Wales.

When writing that Despatch I was fully aware that the number of the Upper House in New South Wales was unlimited. I am also fully aware that, on certain critical occasions, it may become not only expedient but indispensable to bring the two Houses into harmony, by creating, or threatening to create, a number of Legislative Councillors sufficient for that purpose. But it is not the less clear that the whole value and character of the Upper Chamber will be destroyed if every successive Ministry is at liberty, without any sufficient occasion, to obtain a majority in the Council by the creation of Councillors. To prevent this, some constitutional understanding, having in the public eye the form of a valuable though not absolutely inflexible precedent, and limiting the circumstances under which such creations can properly take place, is desirable. Such an understanding did, in fact, exist between Sir John Young and his successive Ministers; and the object of my Despatch of the 18th of December was to enforce on you the inconvenience of any course which was calculated, without necessity, to impair the authority of that understanding, and to the expediency of making it clear, in the interest of the Colonial Constitution, that any necessary violation of its letter was not really a violation of its spirit; that is to say, that it was resorted to not to strengthen a party, but in reality for the convenience of legislation.

I have, &c. (signed) Granville.

Proceedings of the Executive Council, on the 28th March 1861, relative to the appointment of the Honourable John Robertson as a Member of the Legislative Council.

Minute No. 61/13.—Confirmed 8th April 1861.

Having been invited to the consideration of the subject by His Excellency the Administrator of the Government, at the instance of the Honourable the Vice-President, the Council advise that the Honourable John Robertson be appointed to a seat in the Legislative Council.

(signed)

Edward C. Merewether

, Clerk of the Council.

Proceedings of the Executive Council, on the 2nd September 1861, relative to the appointment of new Members of the Legislative Council.

Minute No. 6¼0.—Confirmed 9th September 1861.

Referring to the proceedings on the llth June last, His Excellency the Governor, at the instance of the Honourable the Vice-President, invites the attention of the Council to the desirability of making some further appointments to the Legislative Council.

The Council advise that Samuel Deane Gordon and Edward Butler, Esquires, both of Sydney, who have expressed their willingness to accept seats in the Legislative Council, be appointed Members of the said Council, and summoned thereto accordingly.

(signed) Charles Cowper, Jun., Clerk of the Council.

Minute 62/34, 13th October 1862.—Confirmed 20th October 1862.

His Excellency the Governor acquaints the Council that William Charles Wentworth, Esquire, has resigned the office of President of the Legislative Council, and invites their attention to the necessity of appointing his successor.

His Excellency having informed the Council that Terence Aubrey Murray, Esquire, late Speaker of the Legislative Assembly, has expressed his willingness to accept a seat in the Legislative Council, they thereupon advise that Mr. Murray be summoned to the Legislative Council accordingly, and further advise that he be thereupon appointed President,

Terence Aubrey Murray, Esquire, having been introduced, His Excellency, under the 33rd clause of the Constitution Act, administered to him the prescribed oath, and he then withdrew.

page 82

The Council upon the present occasion desire to place on record the deep sense which they entertain of the valuable services rendered to the Colony by Mr. Wentworth, in having accepted the office of President of the Legislative Council, and of the manner in which he has fulfilled the important duties of that high position during a very critical period in the history of the Colony.

(signed) Charles Cowper, Jun., Clerk of the Council.

The Secretary of State for the Colonies to Governor Sir John Young.

Sir,

Downing-street,

I have received your Despatch, No. 93, of the 18th of October, informing me that, acting on the advice of the Executive Council, you had nominated Mr. Terence Aubrey Murray, the Speaker of the Legislative Assembly, to a seat in the Legislative Council, and the Presidency of the Council, in succession to Mr. Wentworth, who was about to proceed to this country.

You further inform me that the Legislative Assembly have unanimously selected Mr. John Hay to fill the office of Speaker, which had been vacated by Mr. Murray.

I have, &c. (signed) Newcastle.

Minute of the Colonial Secretary (Mr. Cowper).

Appointments to the Legislative Council.

George Henry Cox, Esquire, Mudgee; Edward H. Lloyd, Esquire; William Walker, Esquire, Sydney; Robert Towns, Esquire, Sydney.

Proceedings of the Executive Council, on the 17th June 1863, with reference to the appointment of certain Gentlemen to seats in the Legislative Council.

Minute 63/21.—Confirmed 24th June 1863.

Having been invited to the consideration of the subject by His Excellency the Governor, at the instance of the Honourable the Colonial Secretary, the Executive Council advise that the following gentlemen, who have intimated their willingness to accept seats in the Legislative Council, be forthwith summoned thereto accordingly, viz. :—(1) George Henry Cox, Esquire, Mudgee; (2) Edward Henry Lloyd, Esquire, Sydney; (3) Robert Towns, Esquire, Sydney; and (4) William Walker, Esquire, Sydney.

(signed) Chas. Cowper, Jun., Clerk of the Council.

Minute 63/21, 17th June 1863.—Confirmed 24th June 1863.

Minute of Colonial Secretary (Mr. Forster).

Edward David Stewart Ogilvie, Esq., Yulgilbar, Clarence River.

John Blaxland, Esq., The Hermitage, Ryde.

Robert Johnson, Esq., Brooksby, Double Bay, Sydney.

Proceedings of the Executive Council, on the 23rd November 1863, with reference to the appointment of certain Gentlemen to seats in the Legislative Council.

Minute 6¾3.—Confirmed 1st December 1863.

Having been invited to the consideration of the subject by His Excellency the Governor at the instance of the Honourable the Attorney General, the Executive Council advise that the following gentlemen, who have intimated their willingness to accept seats in the Legislative Council, be forthwith summoned thereto accordingly, viz.:—
1.John Blaxland, Esq., The Hermitage, Ryde;
2.Robert Johnson, Esq., Brooksby, Double Bay, near Sydney; and
3.Edward David Stewart Ogilvie, Esq., Yulgilbar, Clarence River.
(signed)

Alex. C. Budge

, Clerk of the Council.
page 83

Minute of Colonial Secretary (Mr. Forster).

Joseph Docker, Esq.

Let the papers necessary to the nomination of the above to the Legislative Council be prepared.—W. F.

Proceedings of the Executive Council, on the 1st December 1863, relative to the appointment of Joseph Docker, Esq., to a seat in the Legislative Council.

Minute 6¾4.—Confirmed 7th December 1863.

Having been invited to the consideration of the subject by His Excellency the Governor, at the request of the Honourable the Attorney General, the Executive Council advise that Joseph Docker, Esq., of Scone, who has intimated his willingness to accept a seat in the Legislative Council, be forthwith summoned thereto accordingly.

(signed)

Alex. C. Budge

, Clerk of the Council.

Minute Paper for the Executive Council.

Crown Law Offices, Sydney,

I recommend that Thomas Icely, of Coombing Park, near Carcoar, Esq., be appointed a Member of the Legislative Council of New South Wales.

(signed)

James Martin,

Attorney General.

Minute Paper for the Executive Council.

Crown Law Offices, Sydney,

I recommend that Alexander Campbell, of Rosemont, near Sydney, Esq., be appointed a Member of the Legislative Council of New South Wales.

(signed)

James Martin

, Attorney General.

Minute Paper for the Executive Council.

Crown Law Offices, Sydney,
I recommend that the following gentlemen be appointed Members of the Legislative Council of New South Wales, viz.:—
1.James Chisholm, of Kippilaw, Esquire.
2.Francis Lord, of St. Leonards, Esquire.
3.Sir William Macarthur, of Camden.
(signed)

James Martin,

Attorney General.

The Colonial Secretary to Governor Sir John Young.

Sydney,

Sir,

Your Excellency having declined to nominate to the Legislative Council the two additional Members lately recommended by my colleagues and myself, through the Honorable the Attorney General, I consider it my duty to resign the office of Colonial Secretary, together with all other offices thereto appertaining. And as I understand your Excellency's objection to the nominations in question is in no way founded upon personal reasons, but rests chiefly upon the assumed desirability or expediency of confining the number of Members of the Legislative Council within a certain fixed limit, arbitrarily determined by your Excellency, in concert with our predecessors, but never assented to by my colleagues or myself, and wholly without authority or recognition from the Constitution Act, or from any other statute, I feel bound to place on record my respectful but most emphatic protest against what appears to me an unwise and unconstitutional attempt on your Excellency's part to control the operation of our constitutional laws in a manner calculated to favour the political opponents of the present Ministry, and to paralyze the action of representative institutions. And I take occasion further to remark page 84 upon the extraordinary contrast presented on the one hand by your Excellency's unwillingness to accept the recommendation of my colleagues and myself in this particular instance, as well as in other instances of a similar kind, which I need not specify, and on the other by the apparent readiness evinced by your Excellency in acting upon similar recommendations from the Ministry that preceded ours, as, for instance, on that memorable occasion when, with the concurrence and by the authority of your Excellency, twenty-one new Members were, during the last Session of the former Legislative Council, suddenly and simultaneously nominated to that body, for the notorious and openly avowed purpose of rescuing the then Ministers out of a purely political difficulty; and again, on a later occasion, when, in constructing afresh the present Legislative Council, your Excellency and the Executive Council used their formal authority expressly to secure for the same Ministers what, in the peculiar language of that Minute of the Executive Council, by means of which this piece of business was transacted, was termed a "fair working majority," or, in other words, a majority to aid in retaining the same Ministers in office. The cases to which I have above referred, I regret to say, appear to me to betray a degree of partiality on your Excellency's part towards our predecessors, as compared with the Members of the present Administration, inconsistent with your Excellency's position as Her Majesty's Representative in this Colony, and of which my colleagues and myself have some reason to complain. I have accordingly the honour to request that your Excellency will forward a copy of this letter to the Secretary of State for the Colonies.

I have, &c. (signed)

William Forster.

The Colonial Secretary to the Attorney General.

Sir,

Colonial Secretary's Office, Sydney,

I have the honour to enclose, with a view to its being laid before the Executive Council, for your and their information, a copy of a letter which I yesterday had the honour of transmitting to His Excellency the Governor, conveying my resignation of the office of Colonial Secretary, together with all other offices thereto appertaining, and containing a statement of the circumstances under which I have felt it my duty to adopt this course. I need scarcely say that I regret exceedingly being compelled, by what appears to me an ill-judged resistance on His Excellency's part to the wishes of his Constitutional Advisers, to separate myself from your Ministry at the present crisis of public affairs. I am confident, however, that the principles on which I have acted, and which I have endeavoured to maintain, have the unanimous concurrence of yourself and your other colleagues, and I trust may meet with the approval of the public generally.

I have, &c. (signed)

William Forster.

The Attorney General to the Colonial Secretary.

My dear Forster,

Attorney General's Office,

I exceedingly regret that you have thought it your duty to withdraw from the Ministry, in consequence of the refusal of His Excellency to appoint to the Legislative Council two gentlemen whose names were submitted to him by the Cabinet, through me, a few days since. I entirely concur with you in deploring His Excellency's refusal. Had His Excellency declined to act upon the recommendation of the Cabinent previously to the late vote of censure, which led to the dissolution, I think that we then might have most properly tendered our resignations to him on that ground, but I do not think that such a course can now be taken with any degree of propriety, when there is good reason to believe that on Friday next an Amendment to the Address will be moved, with every probability of its being carried. I think that it would betray pusillanimity on our part were we to evade the issue which will then be raised, by retiring from office on the avowed ground of His Excellency's refusal to act in a particular instance on our advice.

Nothing has occurred between His Excellency and the present Cabinet during the fifteen months that we have been in power that can fairly call upon us to place on record our opinion of the transactions to which you refer.

My other colleagues and myself, equally with you, concur in the principle which has led to your resignation, if we are right in understanding that principle to be a determination to withdraw from office on the refusal of the Governor to act upon our advice in any matter which we may think it our duty seriously to insist on; but, as already stated, we differ from you entirely as to the time and occasion which you have selected for the application of that principle; neither can we join with you in expressing the opinion, as you have done, that His Excellency has betrayed partiality towards our predecessors as compared with ourselves. There were many things done by His Excellency at the instance of the late Administration which we could not approve, and as the like could never by any possibility have been recommended by us, such things can hardly form page 85 legitimate topics for comparison or contrast. In my own personal intercourse with His Excellency, I have at all times found a courteous readiness on his part to act in accordance with constitutional principle, and I do not remember any instance other than that which has led to your resignation in which he has declined to act on any recommendation of the Cabinet. While regretting his refusal, I, at the same time, think that it was unwise of you to avail yourself of this misunderstanding to withdraw at so peculiar a crisis as the present. I am aware that you care as little for the censure of the Assembly as I do, so long as we are both conscious that we have done nothing to deserve it; but, however we may disregard that censure, it is, I think, our duty manfully to meet it. My colleagues, as well as myself, are all perfectly satisfied that in what you have done you have not been actuated by any desire to throw impediments in our way, but solely by a determination to vindicate your position as a Responsible Adviser of the Crown. Although our views on this matter differ from yours, we know that our conduct in continuing in office will not be attributed by you to any motive other than that which I have already expressed. It is His Excellency's wish that you should retain your present office until your successor is appointed.

Yours very faithfully, (signed)

James Martin.

Minute Paper for the Executive Council.

Colonial Secretary's Office, Sydney,

I recommend that Elias Carpenter Weekes, Esquire, be appointed a Member of the Legislative Council.

(signed)

Charles Cowper.

Minute Paper for the Executive Council.

Crown Law Offices, Sydney,

I Recommend that the undermentioned gentlemen be appointed Members of the Legislative Council, viz. :—James Macarthur, Esquire, of Camden Park, Camden; Edward Cox, Esquire, of Fernhill, Mulgoa; and Hugh Wallace, Esquire, of Nithsdale.

(signed)

James Martin, A.G.

Minute Paper for the Executive Council.

Crown Law Offices, Sydney,

I recommend that Patrick Alfred Jennings, Esquire, of Warbreccan, Deniliquin, be appointed a Member of the Honourable Legislative Council of New South Wales.

(signed)

James Martin.

Minute Paper for the Executive Council.

Colonial Secretary's Office, Sydney,

I recommend that John Hay, Esquire, of Woollahra North, be appointed a Member of the Legislative Council of New South Wales.

(signed)

Henry Parkes.

page 86

Minute Paper for the Executive Council.

Crown Law Offices, Sydney,

I recommend the appointment of the undermentioned gentlemen as Members of the Legislative Council, viz.:—Frederick Matthew Darley, of the Edgecliff-road, Woollahra; Thomas Holt, of The Warren, Cook's River; Henry Moore, of Barncleuth, Sydney; Alexander Park, of Lewinsbrook, Paterson; and John Richardson, of Bourke-street, Surry Hills.

(signed)

James Martin.

Minute Paper for the Executive Council.

Colonial Secretary's Office, Sydney,

I recommend the appointment of Robert Owen, Esq., to be a Member of the Legislative Council.

(signed)

John Robertson.

Copy of Telegram from the Hon. John Robertson, Esq., holding office of Colonial Secretary and Premier, dated 29th June 1869, to the Hon. Charles Cowper, Esq.

Dubbo.

"Did you ever consent, by Minute or otherwise, to limit the number of appointments to the Legislative Council?" Immediate.

Copy of Reply, dated Dubbo, 30th June 1869, of the Hon. Charles Cowper, Esq.

"Dubbo,

"I do not remember ever to have pledged myself, either verbally or in writing, to such an agreement; and unless document can be produced to the contrary, I do not believe that I ever did so."

To the Hon. John Robertson, Esq., Colonial Secretary, Sydney.

MinutePaper for the Executive Council.

Colonial Secretary's Office, Sydney,

I Recommend the appointment of Charles Campbell, of Newtown, and Thomas Ware Smart, of Mona, Darling Point, Esquires, as Members of the Legislative Council.

(signed) Charles Cowper.

Minute Paper for the Executive Council.

Colonial Secretary's Office, Sydney,

I Recommend that William Bede Dalley, Esq., be appointed a Member of the Legislative Council.

(signed) Charles Cowper.

Minute Paper for the Executive Council.

Colonial Secretary's Office, Sydney,

I recommend that the Honourable Julian Emanuel Salamons, Esq., Solicitor General, be appointed a Member of the Legislative Council.

(signed) Charles Cowper.

Minute Paper for the Executive Council.

Colonial Secretary's Office, Sydney,

I Recommend the appointment of the Honourable Saul Samuel, Esq., as a Member of the Legslative Council.

(signed) Henry parkes.

* The Enclosures to this Despatch will be found on pp. 83-85.