Other formats

    Adobe Portable Document Format file (facsimile images)   TEI XML file   ePub eBook file  


    mail icontwitter iconBlogspot iconrss icon

The Pamphlet Collection of Sir Robert Stout: Volume 80a

Appendix I

page 69

Appendix I.

Copies of Parliamentary Papers published in New South Wales and enclosed in the Earl of Glasgow's Despatch of 8th August 1892.—(No. 9 in Series.)

Legislative Assembly.—New South Wales.

Appointments to the Legislative Council. (Despatches and Correspondence, &c., Respecting,—From 1861 to present date.)

Ordered by the legislative Assembly to be printed, 13 August, 1872.

Return (in part) to an Address from the Honourable the Legislative Assembly of New South Wales, dated 6 August 1872, praying that His Excellency the Governor would be pleased to cause to be laid upon the Table of this House,—

"Copies of all Despatches (not confidential) from the Right Honourable the "Secretary of State to the Governor of this Colony, and of all Despatches" (not confidential) from the Governor to the Secretary of State; and also "copies of all Minutes, Letters, or other written Documents by the Responsible" Advisers of the Crown, having reference to Appointments to the Legislative Council, from the year 1861 to the present date, inclusive."

(Mr. Robertson.)

The following Papers are transmitted to the Colonial Secretary, in compliance with the request contained in the Address from the Legislative Assembly, relative to Appointments to the Legislative Council:—
Duke ot Newcastle Separate 4 February, 1861.
Sir John Young No. 37 21 May, 1861.
Sir John Young No. 51 19 July, 1861.
Sir John Young No. 53 20 July, 1861.
Duke of Newcastle Separate 26 July, 1861.
Duke of Newcastle No. 67 21 October, 1861.
Duke of Newcastle No. 68 21 October, 1861.
Sir John Young No. 14 16 February, 1865.
Mr. Cardwell No. 37 26 May, 1865.
Lord Belmore (2 Enclosures) No. 109 29 September, 1868.
Lord Granville No. 2 18 December, 1868.
Lord Belmore (1 Enclosure) No. 109 14 July, 1869.
Lord Granville No. 77 2 October, 1869.

There are further Despatches on this subject; but they are marked confidential, and so cannot be given.

G. H. de Robeok.

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.
page 71

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

My Lord Duke,

Government House,

I have the honour to enclose a copy of the Proclamation proroguing the Parliament of this Colony on the 11th instant.

It was necessary to close the Session, in consequence of the expiration of the period to which the first nominations to the Legislative Council were limited.

Several useful enactments were made, the Estimates thoroughly discussed, and the Appropriation Act passed in due form, so that the current expenditure up to 31at December next will proceed under full legislative sanction, which has not been the case for two or three years past.

The Land Bills, I am sorry to say, were not passed, and this difficult and embarrassing question still remains open. At one time there was every prospect of an agreement on all points between the two Houses, and the leading and most moderate men in both gave me the most satisfactory assurances. But unfortunately, during the last week of the Session, a different spirit came over the proceedings. The Legislative Assembly rejected, by large majorities, the amendments of the Legislative Council, which the Legislative Council again insisted, by large majorities, on maintaining.

The Ministers said they had submitted to "indignities" in attempting to pass these Bills, and that their honour was so nearly concerned that additional nominations to the Legislative Council must be made, so as to ensure the passing of the Bills.

The choice, if choice it can be called, placed before me on the morning of Friday, the 10th instant, was, either to accept the advice of the Ministers, or to break with them, backed as they are by six-sevenths of the Legislative Assembly, and by the people, in a cry which was all-powerful on the hustings, at the General Election, no later than last December.

It was admitted on all hands to be impossible to form any other Ministry. The Legislative Council was to expire, in terms of the Constitution, on the following Monday.

No precedent could be founded on the proceedings, as similar circumstances can never recur in the history of the Colony, and it seemed desirable to make an effort to end the long, harassing, and injurious agitation on the Land question before the question of the new nominations to the Legislative Council came upon the carpet.

Accordingly, after some hesitation, and after receiving the assurance that the step taken should not prejudice the reconstruction of the Legislative Council, that all the gentlemen to be specially appointed for the single night the Council had to last should be made clearly to understand that they would have no claim or right thereby to future reappointment, I consented to the course pressed on me by the Ministers.

The nominations were made accordingly, but the opposite party defeated the ministerial intentions by resigning. The President's resignation in particular had the effect of preventing a House being formed. There was "No House," so the new Members were not sworn in, and the adjournment which ensued, as a matter of course, was nominally to the following Tuesday, but it really closed the Session, for it went over to a period when, by the effluxion of time, the Legislative Council—the old as well as the new nominations—had ceased to have effect.

Matters now stand thus :—The Parliament is prorogued. Whether it will be called together to pass the Land Bill one month or three months hence is not yet decided.

The expenditure and current business are proceeding in due form, and with all requisite sanctions.

The Land question remains unsettled, which is to be deplored, as the state of conflict and uncertainty is deeply hurtful in many ways, but the public mind is quiet.

The people arc satisfied that all that could be done to pass the Bills on which their hearts are set has been done by Ministers.

No meetings have been called. The tone of the Press is moderate, and measures for the reconstruction of the Legislative Council have been taken on a basis which accords with your Grace's recommendations.

These measures are not sufficiently advanced for me to make a positive statement as to the result at the present moment, but I think I may say there appears to me to be ground for hoping that I shall be enabled to make your Grace a satisfactory announcement on this anxious subject by the next mail.

I have, &c.

John Young.

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

Government House, Sydney,

My Lord Duke,

At Sir William Burton's request, I have the honour to send herewith a statement of his services, and of the circumstances which appeared to him to call for his resignation of the office of President of the Legislative Council of New South Wales.

page 72

This document is a narrative, in some sort an impeachment, of the whole policy and proceedings of the existing Ministry, who, on their part, are prepared to combat Sir William Burton's position.

Your Grace will probably be inclined to view what may be urged on the one and on the other side as matter rather for constitutional discussion between those who take opposite sides in the Colony than for imperial cognizance. If, however, you should think proper to institute a minute review of these affairs, and so judge between the parties, I shall take the earliest possible opportunity, on being so instructed, of furnishing you with the necessary materials, which, indeed, comprised the Bills, Reports, Parliamentary Debates, and Proceedings of more than one Session.

In no other way than by so extensive a study can light be thrown on the reasons which induced Ministers to introduce some Bills, to oppose others, and give to a third class a modified opposition or support as the case may have been.

There are some (four) points in Sir W. Burton's statement which I feel called upon to notice, as affecting myself. I will take them in the order of the pages as they occur. I must, however, premise that on my arrival here I found a political storm raging with the utmost violence. Throughout all the different phases which it assumed I have acted on the advice or with the concurrence of my Executive Council.

If the wisdom of the policy I have pursued is to be judged of by its effects, I may with great confidence refer to the present aspect of affairs : the political excitement has calmed own, and the really important question at issue—the reconstruction of the Legislative Council—has been effected on terms counselled by the leaders of the popular party who are in power, and admitted on all hands to have given satisfaction and confidence to the richer classes, and to all whose capital and industry seek permanent investment in the colony.

1st. At page 19, Sir W. Burton mentions that he waited upon me at twenty minutes past 2 o'clock on the 10th May, in company with Mr. Deas Thomson, to present an Address and other papers connected with the business of the Session, and complains that I allowed him to leave without making any explanation of the ministerial intentions.

I could scarcely have done so with propriety : no decision had been formally taken at the time. The Executive Council (the Ministers) had not met to arrange and conclude their plans, and your Grace will, I am persuaded, be of opinion that I was not at liberty to impart to any others, however respectable, the course the Ministers had in view, while it was not definitely settled. What Sir W. Burton expected, as a courtesy to himself, would have been a breach of confidence to the Ministers.

Sir W. Burton was, however, perfectly aware of the importance which I attached to the proceedings of the Legislative Council upon the Land Bills, not on their own account, but on account of the difficulties their rejection would inevitably entail upon the far graver question of the reconstruction of the Legislative Council.

Ten days previously, upon my pointing out the impolicy of further resistance to the Land Bills, under the peculiar circumstances and probability that the Legislative Council might by undue pertinacity permanently injure the interests they wished to protect, and adding that, looking to the results of the General Election and to the position in which Ministers stood, I could take no responsibility for what might occur, Sir W. Burton assured me the Land Bills would certainly pass, and that I might make my mind perfectly easy on the subject. This assurance was, I am persuaded, given in good faith, though his expectations, as well as my own, were disappointed by the event.

It appeared tome that the Land Bills, if open to objection, might be altered and amended in subsequent Sessions, but that which governed the whole issue and rendered it so anxious, was, the expiration in a few days of the Legislative Council, and the necessity for its immediate reconstruction. A faulty reconstruction might prejudice the legislation of the Colony for years to come, and entail permanent injury.

No reconstruction could be effected by the Governor, except with the advice of the Executive Council; and the Executive Council are the men who have for years headed the popular party unanimous in its demand for the Land Bills, and rendered all-powerful in the Legislative Assembly by the recent General Election.

At page 22, amongst the Constitutional courses opened to me, Sir W. Burton enumerates a recommittal of the Bills—the dissolution of the Parliament—a change of Her Majesty's Ministers—or a conference between the two Houses—as to the exact state of matters technically between the two Houses. J can only speak on the authority of Ministers—they point to Amendments insisted upon by the Legislative Assembly—rejected by the Legislative Council by majorities of 20 to five and 15 to five—and they say they were unable to infer from these majorities, and the apparently determined stand, the intention to yield the points on recommittal or in a conference; they add, the Minister who had charge of the Bills in the Legislative Council had submitted to "indignities" in attempting to pass the Bills, and declared "their honour was at stake"—they tendered their advice or their resignations. As to a dissolution of Parliament: It is to be remarked that the Parliament had been dissolved so late as last December—not half-a-year before, on the very points at issue; and as Sir W. Burton himself admits (page 3)—"The opinion of the country had been very unmistakably given, by the return of such Members to the new Parliament as the constituencies considered were prepared to adopt the particular views contained in the Bill."

As to a change of Ministers: Supported as they were by 60 or 65 Members out of page 73 the the 72, the adoption of such a suggestion would only have involved the Crown in a contest, certain to end in defeat, with the Legislative Assembly and the constituencies.

But it may be said, I might have temporised during the 48 hours which were to elapse before the old nominations to the Legislative Council expired, and the body ceased to exist—perhaps induced Ministers to withdraw their advice; I thought of this, but the objections to such a course seemed grave; it would have satisfied nobody, and settled nothing, and made the reconstruction of the Legislative Council on fair and equal terms between parties next to impossible.

The position would have been this: The Land Bills rejected by the Legislative Council, representing the upper or richer classes—the Ministers apparently acquiescing in the defeat, the people disappointed and distrustful, the Legislative Assembly irritated and exacting. The consequence would have been that the reconstruction of the Legislative Council, which could not be avoided or postponed, and which could only be effected with the advice of the Ministers, could hardly have been effected on any reasonable terms. The Ministers would not have ventured to advise or acquiesce in the nominations of any but decided partisans on the popular side. Now that the business is brought to a fortunate issue, I am persuaded, reflecting upon all that passed, that I was fortunate in adopting the Ministerial advice; it was the least of the evils that stood for choice, and, though hazardous and thorny enough, it was the only path that led to safety. The Legislative Assembly and the public were reassured and contented, the honour of the Ministry vindicated, and themselves lift free to act with forbearance to the opposite parly, and that wise moderation in the nominations for life to the Legislative Council which they have since evinced.

At page 27 Sir W. Burton complains he was not offered a seat in the reconstructed Council. The Ministers were not inclined to give the necessary sanction of their advice to his reappointment, but wish me to add that, whatever their inclination, room was not left for any consideration on their part, so great was the haste with which Sir W. Burton advertised his house and property for sale, and announced his intention of leaving the Colony.

Page 28, as to the favourable report Sir W. Burton bespeaks from your Grace. Although Ministers have not advised my availing myself of his services in the Legislative Council, and although I may not think the alternatives he proposed at an anxious crisis other than unsafe, and inapplicable to the requirements of the time and the Colony, yet I should be very sorry indeed if, on these accounts, there were withheld any portion of the recognition and respect which are due to his age, his unblemished private character, and his long services as a judge.

I have, &c. (signed)

John Young


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

My Lord Duke,

Government House, Sydney,

I have the honour to inform your Grace that the Legislative Council of this Colony has been duly reconstructed, as required by the terms of the 3rd clause of the Constitution Act.

2. I enclose copies of the "Gazette" containing a list of the names of the gentlemen appointed. Seats were in the first instance offered to 27 gentlemen, that being the number fixed upon as suitable and convenient; five declined the offer on grounds of a personal and private nature, and one was objected to by Ministers as announcing in his answer his intention of opposing the Land Bills and generally the policy of the Government.

Seats were then offered to three others, of whom two accepted, and one declined on private grounds. This leaves the number at 23 for the present, but it is understood that as occasion may arise four more names may be added, so as to complete the number up to 27, which is taken as the complement not to be exceeded, except under very special and exceptional circumstances.

3. Of this list of 23, 12 were in the late Legislative Council; some others held seats in past times, and three filled the office of Attorney General in former administrations. All are gentlemen of high standing and character, and the names of the ablest and most distinguished persons in the Colony are to be found in the list.

4. The selection has created a very favourable impression on the public mind, and forms a body to which the important functions to be discharged by an Upper House may be safely assigned.

5. There is sent herewith a copy of the Minutes of the Executive Council, which will put your Grace in possession of all particulars, and of the result of the Ministerial deliberations.

page 74

6. I have already had occasion, in former Despatches, and in my answer to Sir W. Burton's statement, to speak at length of the perplexities of the situation and the political excitement I had to face on my arrival; I shall not therefore allude to them further than to say that I feel happy in thinking that the reconstruction, though complicated by so many causes of doubt and anxiety, has thus been happily accomplished in accordance with the wise suggestions of your Grace's Despatch of the 4th February last.

I have, &c, (signed)

John Young.

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



I have to acknowledge your Despatch, No. 37, of the 21st May, enclosing a copy of the Proclamation by which you had prorogued the Parliament of New South Wales, on the 11th of that month, in consequence of the approaching expiration on the 13th of the period to which the first nominations to the Legislative Council were limited.

With regard to the reconstruction of that body, I have nothing to add to my Despatch of the 4th February last, the recommendations of which I am glad to hear from you will not have been overlooked by yourself and your Ministers in taking the measures necessary for the purpose; hut I cannot pass by without notice your report of the means which you took, by the advice of your responsible advisers, to ensure the passing of the Land Hills through the Legislative Council; the creation, namely, upon a sudden, and for a single night, of a number of Legislative Councillors, which you do not specify, but which must have been sufficient to convert a large majority against the Bills into a majority in their favour.

I am fully sensible of the very difficult position in which you found yourself when pressed to take such a course, under a threat of resignation, by Ministers who you say you could not have replaced. I regret, however, that they should have offered you that advice, and that you, even under the circumstances which you describe, should have accepted it. A measure so violent and in its nature so unconstitutional could only be justified by circumstances of the gravest, danger and the greatest urgency, which did not, as it appears to me, exist on the present occasion. Your resistance to it could only have led to the same state of things (after, perhaps, a Ministerial crisis) which has actually resulted from the defeat of the attempt to force the Bills through the Council by the counter stratagem to which the Opposition resorted, and would, I can hardly doubt, have received a large amount of approval and support from the public opinion of the Colony, irrespectively of the merits of the measures which happened to be in question.

I have thought it my duty to say so much by way of comment upon a proceeding which is not creditable to the cause of constitutional government in Australia, while it tends to weaken the position of the Governor; but I can at the same time make great allowances for the difficulties of the dilemma in which yon found yourself placed so soon after your arrival in a new sphere of duty, and I am sure that you acted as appeared 10 you, at the moment, best for the public interests.

I have, &c. (signed) Newcastle.

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



I have the honour to acknowledge the receipt of your Despatch, No. 55, of the 20th July, reporting the reconstruction of the Legislative Council of New South Wales, as required by the 3rd clause of the Constitution Act.

It affords me much pleasure to observe in the list of Legislative Councillors so many names of gentlemen of eminence and tried ability, and it is my earnest hope that the construction of the new Legislative Council may tend to promote the welfare of the Colony.

I have, &c. (signed) Newcastle