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The Pamphlet Collection of Sir Robert Stout: Volume 80a

Appointments to the Legislative Council. — The Secretary of State for the Colonies to Governor Sir John Younq

Appointments to the Legislative Council.

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




I have been reminded by your predecessor's Despatch No. 113, of the 19th November last, that the period is approaching when the present Members of the Legislative Council will vacate their seats, and a new appointment of Councillors will become necessary.

The Members of the first Council were appointed under the Constitutional Act, in May, 1856, and were to retain their seats for five years. In May, 186J, therefore, it will become the duty of the Governor, with the advice of his Executive Council, to appoint not less than twenty-one (21) Legislative Councillors, who are to hold their seats for life.

I am very deeply impressed by the importance of this conjuncture to the well-being of the colony; not because I at all anticipate that the opportunity will be taken to place unfit persons in that branch of the Legislature, but because the occasion appears to me one which is calculated to try very severely the system of party government now established more or less in the principal British colonies.

A Government representing not the entire community, but that political party which is in the ascendant, is in an evidently false position when called upon to reconstruct a branch page 70 of the Legislature. If they adopt the task, it cannot be expected that they will place their own party in a minority in the Council. But it is equally clear that if they give themselves a majority in that body, it will be liable to be viewed as the mere creature of the party which appointed it, and that their opponents will probably conceive themselves justified, on succeeding to office, in adjusting the inequality by the creation of fresh Councillors. On every change of Ministry the same argument will be equally good, and the consequence may be that the first act of each administration may be to swamp the Council which has been previously swamped by their predecessors.

Such a result would of course amount to a total change of the present Constitution. But far worse than any change of the Constitution would be the demoralising effect of the mode in which that change had been effected. No Government can subsist unless the Legislature is an object of respect. No party Government can long subsist with advantage to the community, unless rival political parties are tacitly agreed that great constitutional cases shall be treated with reference to the public good, and not to party interests.

Now, in the circumstances I have supposed, a branch of the Legislature, without ceasing to exist, could not fail to sink into a state of weakness and disrepute. And this misfortune would have arisen from the fact that a number of gentlemen finding themselves in power at the period of a great constitutional change had treated, or at least had allowed it to be supposed that they had treated, that occasion as a mere means of party advantage, and that their opponents on coming into power had endorsed their proceedings, by following (as far as possible) their example.

Not knowing who may be your advisers when this despatch reaches the colony, I may be allowed, without any disrespect to them, to say, that these considerations appear to me conclusive as to the dangers inherent in the mere nomination of a fresh Legislative Council in the terms of the Colonial Act of Parliament by the Governor and Executive Council.

But it is possible that some of those who are dissatisfied with the existing Constitution may be desirous of using this opportunity to bring the Legislature into a position of such embarrassment as shall force an alteration of its composition.

Such a course seems to me hardly less detrimental to the permanent interest of the colony than the nomination of a partisan council. I do not inquire how far the Constitution is suited to the exigencies of New South Wales—this is a question for those who inhabit that colony; but of this I am, certain, that in a free country little permanency can be expected for any reform unless it has been carried either without material opposition, or under such circumstances as compel even the minority to acknowledge that they have been fairly heard and decisively vanquished.

This is a consideration of the greatest weight in a new country where the Constitution has not had time to acquire that authority which is earned by long and successful use. There, most of all, is it desirable that fundamental changes should be so carried as to be secure from reversal But such reversal is almost invited when an important change in the Constitution of the Legislature is carried, not after argument and experience by the deliberate judgment of the community, but by the hasty and adroit use of an exceptional necessity.

It is scarcely requisite to point out an obvious mode of avoiding these difficulties by the bare re-appointment of the present Legislative Councillors. I do not know how far these gentlemen at present command the confidence of the colonists; and it can hardly be supposed that if the appointments were to be made in 1861, all the same persons would be placed in the Council who were nominated to it in 1856. But without anticipating the judgment of the colonists on the public conduct of these gentlemen, I may be allowed to say that, if there should be no paramount objection to their reappointment, I see in that course a promise of permanent advantage, or rather an escape from a very serious danger, and that I should learn with great satisfaction that your Government had decided upon adopting it.

It is most probable that the considerations which have pressed so strongly on my own mind may have presented themselves with still greater force to your advisers long before you receive this despatch; and it is possible that public opinion (which must also have been directed to the subject) may have already decided upon some sufficient mode of obviating the inconveniences of which I am apprehensive.

If this be the case, the present despatch is happily unnecessary.

But it is also possible that the question may be still involved in embarrassment, and that the political parties who are concerned in bringing it to a constitutional settlement may be aided in their object by the suggestions of one not unacquainted with the exigencies of Constitutional Government, and who cannot be suspected of any other motive than an earnest desire for the welfare of New South Wales.

It is under this impression that I have addressed you. If this very important question is likely to settle itself in a manner conducive to the welfare of the Colony, there is no reason why you should give any publicity to this despatch; but you are at liberty to make use of it in such a way as you may find expedient, if you think that its communication to your Government, or to the colonists generally, will be advantageous to the public interest.

I have, &c. Newcastle.